THE PARTICULARS OF ASSERTING ‘DEVELOPMENT AS FREEDOM’: A CAPABILITY APPROACH IN THE CONTEXT OF CLIMATE CHANGE

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Wavering from the traditional view of identifying development with respect to increase in gross national product, personal income, industrialization, technological advance, etc., Professor Amartya Sen in his book on Development as Freedom argues that development is a “process of expanding the real freedoms that people enjoy.” He reasons that for development, there is a necessity to remove certain sources of “unfreedom” such as poverty, tyranny, poor economic conditions, etc.

These “unfreedoms” result from various situations. Sometimes it directly relates to poverty which deprives people of the freedom to satisfy hunger, achieve sufficient amount of nutrition, access to proper healthcare, shelter, clean water and sanitation. The unfreedom could also be related to the lack of public facilities and social care such as lack of epidemiological programs and lack of effective maintenance of peace and order. Further, the unfreedom could also result from repudiation of political and civil liberties and from restrictions to participate in the social, political and economic life of the community. This also justifies the direct contribution of political and civil liberties as a direct unit of measurement rather than an indirect contribution to development by its contribution to growth of the gross national product or industrialization. Furthermore, the different kinds of freedom are interdependent and can be used to strengthen each other. For example, unstable political and economic conditions can lead to unemployment which can lead to poverty and capability deprivation, reduce access to healthcare and can even increase gender asymmetries by exerting different kinds of pressures on gender biased roles. Thus, freedom enjoyed from a stable political system can have a direct link to economic and social freedoms.

A rights-based approach to development

The concept of viewing development as freedom is a well-founded pathway in the realm of a rights-based approach to development and seems to be consonance with Peter Uvin’s ideology. Uvin’s primary argument in favor of a rights-based approach rests on two crucial facts that differentiate a rights-based approach from other methods of development: firstly, the rights-based approach finds its basis on claims of certain legal rights arising from freedoms that people must realize and not as an act of charity. Secondly, a rights-based approach advocates that the process of development itself should “respect and fulfill human rights”. This closely relates to Professor Sen’s view that freedoms are not ends of development but also its means, implying that there is a necessity for the realization of certain human rights which provide for freedoms through the development process.

Realization of such freedom becomes essential for two main reasons. The evaluative reason which suggests that assessment of progress through the developmental process could be measured in terms of the freedoms enjoyed by the people have improved and the effectiveness reason which suggests that development directly links to the free agency of the people. I feel that the evaluative reason is crucial because a country may demonstrate increased growth in terms of increase in gross national product, but could have also expanded inequality implying that the freedoms of those on the lower end of the inequality spectrum have lesser realization of their freedoms. This dichotomy between efficiency and distributional effects is thus better measured in terms of freedoms. For example, India which remained a skeptically closed economy in the decades post colonization, undertook a storming wave of liberalization policies in 1991 which led to increased economic growth but suffered largely from the criticism of increasing poverty, inequality and economic degradation.

The capability approach, social justice and poverty

Professor Sen argues that in the context of social justice, individual advantage or choices could be measured in terms of capabilities that a person has – “the substantive freedoms he or she enjoys to lead the kind of life he or she has reason to value”. In light of this situation, one could thus argue that poverty is deprivation of basic capabilities in contrast to the usual approach of measuring poverty in terms of low income. Individual freedom is the central focus of the capability approach. This approach of inspecting poverty in terms of deprivation of human capabilities is especially significant to human development as recognized in the recent years by the United Nations Development Programme (“UNDP”) to measure well-being.

The capability approach is of particular significance when it comes to the assessment of well-being. This can be alluded to several reasons. The most important reason I think is that the capability approach bases evaluation on both the means and ends. The ability of people to convert available resources into a valuable functioning form varies and hence any approach which focuses only on the means without considering if the people will be able to translate them into a valuable functioning, that is, what they want to do with them will be an inadequate approach. An example to support this point would be laws and policies relating to disability. The infrastructural facilities available to a person without disabilities will not be sufficient to address the needs of a disabled person and enable him to enjoy the kind of life he or she has reason to value.

The capability approach is mostly individualistic. While we can view the capability approach as applicable at an individual level where the well-being and effective free agency of people is realized, at a broader social level it can be assessed as a goodness of a social action or social arrangement as formulated by the UNDP. The first level is inherently individualistic whereas the second level denotes a social level evaluation. However, the constituents of such social level evaluation are individual capabilities. This capability approach propounded by Professor Sen varies from that of Martha Nussbaum’s as the former is founded on enhancing the freedoms of individuals whereas the latter rests on “respecting human dignity”.

Climate change and the capability approach

The idea of an apocalyptical future resulting from climate change and pollution is not improbable. It is necessary in this context to picturize the various unfreedoms that one will face in the light of climate change. Such a list will begin with displacement, unemployment, famine, flooding, etc. What then are the capabilities that people are deprived of? How relevant is the previously existing unfreedom of poverty? The answer to the first question is inter-linked to the second question. A poor person does not have multiple housing choices. Displacement then completely deprives them of their freedom of adequate housing and general well-being. Similarly, the famine and flooding can lead to hunger, undernourishment and diseases. There is a lack of substantive freedom then of the individual and his family to establish ownership over an adequate amount of food and freedom to access healthcare.

Additionally, the Universal Declaration of Human Rights, could be looked into for a basic framework that provides for identifying the various capabilities for the realization of human rights in the context of climate change. This may include the right to: sufficient nutrition as guaranteed by the right to life (Article 3), physical safety, health, and bodily integrity (Article 3, Article 25), adequate shelter and physical comfort (Article 25), sufficient and safe employment (Article 23), active inclusion and engagement in a meaningful social network or community (Article 27), access to education (Article 26) and the opportunity to be engaged in decision-making at the individual or collective level (Article 21).

Applying the capability approach to climate change and theory of justice revolving around it, enables us to bridge the gap between theoretical notions of climate justice and policy making at the ground level. The approach will attempt a constructive recognition of the vulnerabilities of various groups affected by climate change in the context of social, economic and political rights and the necessities of people under the varying conditions and places. Understanding the issues of vulnerability and their consequences will help the globalized world adapt to climate change. A capability approach to climate justice can be used as a normative guideline for climate policies and formulate concrete standards for the measurement of progress.

Broadly, the approach would begin with the identification of vulnerabilities in the backdrop of human and environmental needs. The focused approach will then factor in climate change and its effects on the vulnerabilities and needs and demonstrate how a notion of climate justice can be used in the policy process to identify and address those vulnerabilities as we adapt to new environmental conditions. This could take the form of substantive policy responses considering environmental, economic and social conditions to survive, function and progress under new environmental conditions. It is also important to discuss the process of implementation of the policy itself. A bottom-up approach is of relevance here. The capability approach must begin at the local government level as they are better informed in realizing the needs and vulnerabilities of people. This approach must then tie in with overall developmental goals of the nation.

Conclusion

The capability approach cannot be termed as a complete theory of justice as it does not provide for an equitable allocation of resources or burdens. It also does not identify the actors who require to fulfill the obligations. What the capability approach does instead is, it recognizes equality and advocates that each individual must have substantive freedoms he or she enjoys to lead the kind of life he or she has reason to value (Professor Sen’s approach) or must have sufficient resources and opportunities to live in dignity, however he or she may define this (the Martha Nussbaum outlook).

Overall, the capability approach must ensure sufficient mitigation and adaptation actions to prevent the direct impacts of climate change from eroding the capabilities of the most vulnerable groups in the present and future. The policies must be designed to enhance, rather than diminish, the capabilities of those who are most vulnerable and ensure their participation. There are several capacity building and resilience approaches that could be undertaken to both protect and enhance the capabilities of people. This could include: (i) recognizing the needs of the vulnerable groups, integrating it with an assessed impact of climate hazards and accordingly adopt resilience plans which is more targeted and effective, (ii) promote inclusive participation, (iii) support innovation and (iv) incorporate a bottom up approach of implementation and prioritizing the needs of the most vulnerable in national adaptation planning.

Elucidating the Harsh Reality of Acid Attacks: The Indian Context

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India today faces a realm of atrocities against women who constitute 48.5% of the population. Gender based crimes are frequent and standing tall amongst them is acid violence. It is no surprise that the number of women attacked are more than the number of men. The Law Commission of India Report submitted in July 2008 to the Supreme Court of India available at  http://lawcommissionofindia.nic.in/reports/report226.pdf states the same.

Acid attacks or acid throwing has left a number of women scarred in our country. It not only leaves them physically scarred for life but the psychological scarring is unimaginable. While researching on a paper that I was writing on the laws relating acid attacks I met a woman who had fallen prey to one such acid-throwing incident. I sat with her for a long time discussing the laws and policies relating to acid attacks when she revealed to me the shocking ground reality and the plight of acid attack survivors. Today, several years after her attack she fights for the rights of survivors just like herself, and behind the scarred face I could see a beautiful woman who stood brave and strong. Her voice shook with anger and contempt for the justice system, which has failed many like herself.

The Criminal Law Amendment Act of 2013, which was passed in response to the outcry, the Delhi rape case caused in our country, amongst several other provisions for the first time introduced separate provisions in the Indian Penal Code of 1860 for acid violence. Sections 326A and 326B provide for punishment for acid attack and attempt to acid attack which came as a welcome relief. After the introduction of the new penal provisions, the data recording the number of acid attacks in the country seems to be more accurate and reliable.

The punishment provided ranges from ten years to life imprisonment. In this juncture, one may question the quantum of punishment. The pertinent question is whether death penalty will have a better effect on the crime rate? The introduction of death penalty in Bangladesh for acid attacks seems to have made a difference. In 2002, the Bangladesh Government introduced two new acts – Acid Crime Control Act (ACCA) and the Acid Control Act (ACA) for increasing the quantum of punishment to death penalty and regulating the acid sale regulation. With respect to the effect of death penalty and acid sale regulation (which is was the amendment in 2002) in Bangladesh, there seems to be a steady decrease in the number of attacks. The statistical data that I’m referring to forms part of Annual Report, 2013 by the Acid Survivors Foundation at http://www.acidsurvivors.org/images/frontImages/Annual_Report-2013.pdf. This leaves us wondering if a change in the criminal Justice System would make a difference in the Indian Society.

The Supreme Court, in the case of Laxmi v. Union of India came up with a number of guidelines. Firstly, with respect to the regulation of acid sale and enactment of appropriate provision for effective regulation of sale of acid in the States/Union Territories, the Supreme Court has directed the Chief Secretaries of the concerned States/Administrators of the Union Territories to ensure the compliance of the certain directions with immediate effect.

All the States and Union Territories which had not framed rules were ordered make rules to regulate sale of acid and other corrosive substances in line with the Model Rules framed by the Central Government. The States, which had framed rules but those rules were not as stringent as the Model Rules framed by the Central Government were required to make necessary amendments in their rules to bring them in line with the Model Rules framed by the central Government. The Chief Secretaries of the respective States and the Administrators of the Union Territories are required to ensure compliance of the above expeditiously and in no case later than three months from the receipt of the draft Model Rules from the Central Government.

In the States/Union Territories, where rules to regulate the sale of acid and other corrosive substances are not operational, until such rules are framed and made operational, the Chief Secretaries of the concerned States/Administrators of the Union Territories are to ensure the compliance of the following directions with immediate effect:

  • Over the counter, sale of acid is completely prohibited unless the seller maintains a log/register recording the sale of acid which will contain the details of the person(s) to whom acid(s) is/are sold and the quantity sold. The log/register shall contain the address of the person to whom it is sold.
  • All sellers shall sell acid only after the buyer has shown a photo ID issued by the Government, which also has the address of the persons and also specifies the reason/purpose for procuring acid.
  • All stocks of acid must be declared by the seller with the concerned Sub-Divisional Magistrate (SDM) within 15 days.
  • No acid shall be sold to any person who is below 18 years of age.
  • In case of undeclared stock of acid, it will be open to the concerned SDM to confiscate the stock and suitably impose fine on such seller up to Rs. 50,000/-
  • The concerned SDM may impose fine up to Rs. 50,000/- on any person who commits breach of any of the above directions.

The educational institutions, research laboratories, hospitals, Government Departments and the departments of Public Sector Undertakings, who are required to keep and store acid, are directed to follow the following guidelines:

  • A register of usage of acid shall be maintained and the same shall be filed with the concerned SDM.
  • A person shall be made accountable for possession and safe keeping of acid in their premises.
  • The acid shall be stored under the supervision of this person and there shall be compulsory checking of the students/ personnel leaving the laboratories/place of storage where acid is used.

The concerned SDM is vested with the responsibility of taking appropriate action for the breach/default/ violation of the directions given by the Supreme Court. Secondly, with regard to compensation, the Supreme Court has directed that the acid attack victims shall be paid compensation of at least Rs. 300,000 by the concerned State Government/Union Territory as the after care and rehabilitation cost. Of this amount, a sum of Rs. 100,000 shall be paid to such victim within 15 days of occurrence of such incident (or being brought to the notice of the State Government/Union Territory) to facilitate immediate medical attention and expenses in this regard. The balance sum of Rs. 200,000 shall be paid as expeditiously as may be possible and positively within two months thereafter. The Chief Secretaries of the States and the Administrators of the Union Territories are required to ensure compliance of the above direction. Thirdly, full   medical     assistance is to be provided to the victims of acid attack and that private hospitals should also provide free medical treatment to such victims. The concerned officers in the State Governments should take up the matter with the private hospitals if they are reluctant to provide free treatment.

The Supreme Court has made a sincere attempt to bring about guidelines to combat the crime but as I spoke to someone who had first experience in this regard it seemed that the ground reality was very different. My discussion revealed the following issues in India with respect to acid attacks and victims of these attacks:

  • Refusal by private hospitals to treat acid attack victims free of cost. Their justification is that the government has aided them in no way with respect to the land for the hospital, the building or the general running of the hospital. Hence, they owe nothing to the government and there are no proper agencies to implement the law.
  • Acid attack victims are required to receive a compensation of Rs. 300,000 of which 1 lakh has to be paid within 15 days from the date of the attack. However, the compensation provided is very little and is also delayed.
  • There is absolutely no regulation in relation to acid sales though the Supreme Court in its recent judgment has provided guidelines for the same. China Bazaars in Bangalore sell litre of acid for just Rs. 60 without requirement of any kind of identity. Once again, the lack of implementation of the Supreme Court regulations and no clarity as to the proper implementation agency or body seems to be the problem.
  • Lack of sensitivity on part of the State Governments is another issue. No implementation of guidelines of the Supreme Court, no rehabilitation of victims. NGOs aid in setting up small employment opportunities but if the Government joins in then it could be done on a larger scale considering the fact that if each State Government takes responsibility then the victims in each state is a number that the Government can handle.
  • Lack of a well-established legal aid system especially for victims from the lower strata of society.

I walked out with a heavy heart knowing that the remedy to the issue is going to be a long-term struggle. The strength in combating the crime lies not only in just creating the law but making sure that it’s complied with.

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