Nuanced understanding of state capacity required to enforce female foeticide laws

Union Minister Maneka Gandhi has proposed to rethink ways to curb female foeticide. The proposal is to make determining gender compulsory and following the pregnant women till their delivery, instead of illegalizing the process to determine the gender of the foetus. This has elicited several responses.

1. Design: One of the common arguments is that design of laws in current format hasn't worked and hence we need to try a new design. This may not be the best way to approach the problem. Thinking of a new design assumes that the poor design is the critical constraint in this case which might not be the case. Quoting Gulzar Natarajan
When something is persistently wrong or a failure, we tend to over-react and assume that the existing design and processes have failed and we need to adopt something new. We have deeply internalized that failures are due to lack of innovation with design, process, and technology. Very rarely do we step-back to see whether the original design and processes themselves were rigorously implemented or not. It is very comforting to rationalize away failures by blaming it on the design and other extraneous factors, rather than questioning our implementation capability.
We are not sure if we introspected enough about design failure vs. implementation failure in this context before jumping on to new design.

2. Quantum of punishment: Some have argued that the quantum of punishment is not enough to deter people from committing this mistake. Others argue that quantum of punishment matters only if there is certainty of punishment. [Read Ajay Shah's comments on similar arguments in a different context]

3. Implementation: Some argue that the problem is with the implementation of existing laws and hence we need police and judicial reforms.

This is generally the conventional wisdom regarding most types failures but all of this is only partly true. We need to rethink some of these and understand state capacity in more detail to effectively address the problems. Some such details are discussed below.

1. Implementation is not dependent only on inherent capacity of the bureaucracy responsible for implementing it: 

The arguments for reforming the police and judicial systems don't distinguish between the inherent ability of bureaucracy and the external factors. They assume that implementation is dependent only on the inherent capacity of implementing organizations and reforming them alone can improve implementation. While reforming these will certainly help, it must not be forgotten that implementation of a law is a function of inherent capacity of the implementing organization and the environment in which it implements. A simple example is - performance of a teacher in terms of improving learning outcomes for a class can be very different if that teacher teaches a) a class of students who are inherently motivated to study; b) a class of students who have motivational issues and don't attend the school etc. If the teacher fails to improve in the second case, merely focusing on improving technical skills of the teacher, without addressing the motivational issues and child's environment at home, is an incorrect diagnosis of the situation. 

Similarly, one may reform police and judiciary by easing constraints but the effectiveness of implementation is not dependent just on these, the environment in which they operate, that is the society and the amount of engagement required with the society to implement the law also matters. 

2. Enforcing on an individual vs. Enforcing on a section of society: We discussed that enforcement depends on the nature and extent of engagement with society. What does that mean?

We need to recognize that laws are of different types, some that deal with individuals in isolation and some with a section of society as a whole. For instance, a murder is an incident associated with an individual. It can be dealt by investigating the crime and holding people responsible. On the other hand, enforcing a rule such as odd-even policy involves dealing with a significant section of a society, which is disproportionate to the workforce of any bureaucracy. Preventing female foeticides also fall into the same category, which involves dealing with a large section of society, disproportionate to the workforce. Reforming bureaucracy can help in enforcing laws which have to do with crimes related to individuals but it is not sufficient to deal with those acts which involve a large section of people.

3. Resistance of society to state penetration: Effectiveness of implementation depends on (a) the inherent capacity of the implementing organization; (b) nature of the act and; (c) the environment in which the law is operated.
Challenges in enforcing laws arising from (b) and (c), due to factors external to bureaucracy, mainly the society, can be termed as the resistance of society to state penetration. The resistance to state penetration is dependent on five factors

(i) Number of people committing the illegal act: As the intuition says, resistance of society to enforcement agencies is directly proportional to the number of people committing the illegal act. If the number of people committing illegal acts is very high, then it is easy for people to get away by committing the act. For instance, if a large number of people start violating the odd-even rule, it increases the challenge to enforce the rule.

(ii) Density of crimes: Are the locations of crimes widespread OR Are they performed in specific locations? If the crimes or illegal acts are performed only in specific locations, it eases resistance to penetration. For instance, we know that most female foeticides are performed in hospitals. So, it gives an anchor to focus, while widespread violations of helmet rule all across the city don't have an anchor to focus.

By this yardstick, it might actually be better to target those doing sonography, which is the case as per the current law. It is easy to monitor few doctors than monitoring a large number of women.

(iii) Visibility of the act: Instances of murder are visible and easy to record at least after the crime is committed whereas instances of foeticide aren't.

(iv) Ease to reach and identify: Acts like consuming alcohol inside one's own house (in states where it is banned) are difficult to identify as compared to illegal acts which are committed outside.

(v) Social prejudices or beliefs of a large section of society: Acts like foeticide are committed due to strong social prejudices of people. They aren't easily dislodgeable with mere punishments pursuing the same the ways used to do with other forms of illegal acts like theft etc.

Also, some acts like child labour are difficult to report and enforce because of the moral conundrums associated with them. If a poor family employs their child to supplement their meagre source of income, then it is morally difficult for a person to complain against such parents.

We must be careful that not all acts that involve a large number of people is due to prejudices or  a problematic mindset. It can also be just because of the incentives in the system. For instance, as many people think, corrupt mindset is not the *main reason* for widespread corruption, though it is widespread involving a large number of people. It's an issue of appropriate incentives. Issues like foeticides are not due to incentives, it's due to inherent prejudices that boys are preferable over girls.

Nature of the act as described by these five metrics is responsible for strong resistance to state penetration. Female foeticide is a classic case of such an act. Female foeticide a) involves a large section of people disproportionate to the bureaucracy b) leaves no easily identifiable trace of the act after it's performed, like murder c) is carried out generally indoors and secretly making it difficult for others to observe and report and d) is due to strong, hard to dislodge prejudices. The only respite is that there are only specific locations that it can be performed, hospitals, which gives an anchor to focus. We thus need to focus and adjust each of these five factors appropriately to enhance the enforcement of female foeticide laws.

4. The state needn't be the only entity responsible for addressing the issue: We often confuse between the right to enforce the law and playing a role in addressing the problem. As discussed, addressing some issues requires dislodging prejudices, which requires sustained social messaging. However, governments alone are expected to perform this action, because it's (state) the law enforcer. In a real life scenario, it's not feasible for governments to sustain focus of messaging on a single issue because of the diverse priorities. Sometimes, governments are quickly judged based on their campaigns leading to a backlash even though the reality is that such campaigns alone can't address complex problems. Swachch Bharat Abhiyan and Beti Bachao, Beti Padhao campaigns are appropriate examples of government's initiatives to carry out social messaging which wade out over time and received criticism.

In this context, we need to understand the difference between responsibility to enforce the law and playing a role in addressing the problem. State is responsible for enforcing the law and hence policy narratives expect only the state to carry out the social messaging campaigns. It might be more effective if governments initiate the campaign but systematically activates grass root organizations to take the campaigns forward. In this case, the grass roots organizations are playing a role in addressing the problem but not being the authorities to enforce the law. Once we understand this, we can also make society an equal partner and expect them to be part of addressing the problem.

Policy lessons

Some policy lessons follow from the above framework.

1. Acts involving large sections of society are to be dealt differently from those which involve individuals. Reforming police and judicial systems can help in preventing crimes which involve individuals but may not be sufficient to prevent acts like foeticide involving large sections of people. 

2. Strong social messaging is required to address prejudices and to bring people onboard: Delhi's Odd-Even policy is a good policy lesson to deal with acts which involve large people disproportionate to the workforce of bureaucracy. It involved strong social messaging nudging people to voluntarily follow the rule rather than using enforcement as the anchor to make people adhere to the law. Such sustained campaign is necessary to address issues involving prejudices so as to dislodge them and also to involve the community. One must remember that such campaigns alone might not mean much in the absence of strong enforcement, as witnessed in the case of Swachch Bharat Ahiyan. We need a concerted effort where governments initiate social campaigns, activate grass roots organizations to take the campaigns forward and at the same time strengthen the enforcement.

Using limited bandwidth of policy discourse and policy space to tinker with the design of laws without recognizing that the critical constraint is society's resistance to state resistance is thus a non-optimal way to solve the problem. Female foeticide is a social problem and addressing it requires strong social messaging and easing the resistance to state penetration. If not, we end up moving from thinking of one innovative design of law to other without achieving significant results while wasting precious money, time, other resources, bandwidth of policy discourse and policy space, meanwhile. 

Having said that, the effectiveness of new proposal of law's design as compared to the existing one is an empirical question and we may try piloting it while we continue to work on integrating other approaches. It is understandable that it might be difficult to pilot such ideas but atleast other second-best solutions like giving money to those who give birth to girl child can be tried out for achieving marginal results in short-term.

[Update: Realized that there is one that amplifies the threat of punishment thereby preventing the crime. It is the closeness of the perpetrators of crime. If all the possible perpetrators are concentrated and closely connected then the punishment to one can swiftly communicate the fear to others thereby acting as an amplifier.

In the case of female foeticides, the possible perpetrators are doctors, who typically are few, concentrated and closely connected. Thus taking switf action by punishing them can have amplifying effects in preventing the crime.

In some cases, this alone might be sufficient and hence we need not rely completely on the difficult and uncertain approach of social transformation.]

1 comment:

  1. Good article covering almost all aspects of a historically institutionalized gender-based cruelty...
    Few comments are suggested:
    1- dowry remains major cause of antipathy against female child. Dowry prohibition law are very poorly implemented.
    2. It is nothing but acting in haste that new design has been proposed. It will certainly increase crimes against mother even during pregnancy. Even more certainly, she will be ill-fed and all health checkups will be ignored. This is not exaggeration but reality which mother and female child face after birth and led to stunting and malnutrition. Thus, this design is not desirable even when universal health access and effective mother and child tracking system are in place.
    3- thirdly, difference between odd-even rule and preventing foeticide implementation has remained, as rightly mentioned, social messaging. It was not only judiciary (including NGT) but also air quality index that enhanced people's perception against pollution. Similar tools which are more mathematical than just number 878 in Haryana and 917 or so at national level might help. For instance, how much females contribute as well as possibility of contribution to national economy or houselehold contribute can be tracked or how much a female child be worth of as human resource. Both swachh Bharat and BBBP requires tremendous efforts to de-prejudice minds. Social media, as a study by IIT Delhi had indicated and I myself believe, is strong tool to sensitize people, particularly teens and youths as values need no propaganda but assertions. This is however inadequate today.

    4- I agree that hospitals should be priority area of monitoring. We must focus on rich and upper middle class as they have emerged as usual violators. Recently many hospitals were sent notices for their sub-600 born child sex ratio in Delhi. This is gross failure of state machinery which identify even such gross crimes years after their commission.

    In short,
    Srtictly implement dowry laws, bring new perspectives and enrich discourse but do not haste to implement even on pilot basis any properly understood design on such sensitive issue, overhaul compaign beyond "Beti =beta" while dislodging Beti is good but not in my Ghar-aangan and take visible effective actions against criminals.