This appeared in today’s edition of Mint in their Views Section.

Milton Friedman said, “….He may be a fool to drive that motorcycle without a helmet, but part of freedom…is the freedom to be a fool.”

So I wonder, Are we free to be foolish?

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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 rickshaw-puller and to give the presumption of a less disparate society. The rickshaw-pullers 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 rickshaw-pullers. 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.

Mary Kissel, the editor of the edit pages in WSJA, has an excellent piece today on Chandni Chowk.

It started fairly innocently. Mary asked me to list the interesting places to visit in Delhi and I thought Humayun Tomb, Red Fort and my favourite Chandni Chowk. She was as excited as I was apprehensive about sending her alone.

She surprised me. She took about three seconds to get used to the madness and then maneuvered her way around the market saying China had already prepared her for such a situation

Now the coolest thing about Mary is not that she can write like this, but that she is a foodie who is not to scared to try out anything new and has a special place for Indian food. From parantha’s to sandesh to besan ke laddoo she wanted to tickle every taste bud. I was only too pleased to accompany her.

As we tried not to get crushed by the madness in CC, between the food and the shops we squeezed in philosophical discussions about Smith and an almost perfectly competitive market and the division of labour and specialisation and spontaneous order. Mary describes it all far more succinctly in her piece, so I’ll stop here.

But I must say, just days before leaving Delhi, this experience was all that I really needed. A friend, lots of food, some silver and the smell of everything bought, sold and provided in Delhi and most importantly a feeling of being free. So thank you Mary, for the experience, the piece and for taking my very own Chandni Chowk to the pages of WSJ.

Events such as the UP Elections present an immense opportunity for a wannabe public choice theorist. So I am hoping I’ll have something to say once the real numbers (and all the drama that follows) come in.

For now about the election process itself. These seven phases of polling in UP have been considered the most successful in UP history. Vandalism, violence and vote buying/snatching have been kept at a minimum and almost all regulations were followed thanks to “Gopal Babu”. There are some free speech issues I have here, but that’s for another post.

There is one thing that struck me in particular about these elections. The Dalit voting. The fact that some actually voted. Perhaps for the first time since independence.

“I have voted for the first time in my life with my wife and son,” said Dwarika Lal of Shishupur in Sarsaul. “Previously we were not allowed to move out of our house and the upper cast people used to cast out votes. This time too our voter identity cards and ration cards were submitted by the pradhan and his brother but due to the intervention of Election Commission officials, we got them back and exercised our right to vote,” said Dwarika.

Now the reason this was made possible. Heavy deployment of central paramilitary forces in the area by the Chief Election Commission. Full story here.

While the entire debate about Dalit rights and opportunities took forefront in the UP election and will invariably play a huge role in the caste politics that is yet to follow; I wonder-is enforcement of law and order all they need?

Dalits have rights, constitutionally protected rights as citizens, as minorities and as backward and underprivileged classes. However the reason why we still have Dalit oppression is simply because of the abysmal law and order situation.

So do we need reservations for Dalits? Or do we just need an independent police which will ensure that Dalit children get to attend school without getting stoned by upper caste children? I have a suspicion it may be the latter. Their opportunities in every sphere, including their participation in the informal economy, is being thwarted by state supported violence and oppression. Once we give them what we always promised, a safe and secure community, I see no reason why Dalits would ever need reservations. They may need school vouchers, perhaps even free primary health care and the like, but little support beyond that.

Instead we do not what is right, but what is easiest. Oppress them with state machinery, and then buy them out (if we allow them to vote) in return for IIM seats.

There is nothing radical being said here. I am just advocating equality. The politicians and the armchair economists and political theorists on the other hand are always lobbying for equalisation. Next they will want unicorns.

I just don’t understand the new Supreme Court ruling which prevents street hawkers from cooking food outdoors. I also don’t understand the particular rationale for preventing cooking while allowing pre-cooked packets in the name of public health. Also, how do you pre-cook and pack golguppas?

Street hawkers are exposed to market forces. They really cannot have a profitable business if their food is unhygienic or bad. While some have more sensitive immune systems, they just choose to abstain from such eating.

So the question is, who are we really protecting?

The other day on Radio Mirchi I heard Salim Kabbabwalla (I think) saying, the measure was pointless, and wouldn’t do much. It would only increase the hafta and increase the cost for both the vendors and consumers. I think he should run the country.

On the question of cleaning streets for the 2010 Commonwealth Games, words fail me.

I have an urge to give a copy of Law, Liberty and Livelihood to the Bench.

Previous post on Livelihood. Previous post on the Bench.

Now the Marxist’s who are the self declared saviours of poor men’s livelihood have again betrayed their hypocrisy and outlawed rickshaw pullers in Kolkata under the pretext of protecting the rights and dignity of these rickshaw pullers. A nice critique of this kind of state paternalism in the Economist here.

Indian government has banned child labour. Again. For the third, or perhaps, the fourth time. Under the new ban more activities have been listed as hazardous for children.

Now if child labour was so simple a problem that it could be solved with a ban, we wouldn’t need four attempts. So what is really the cause of child labour? Don’t all parents want their children to be happy and free from employment?

There is a clear link between child labour and minimum wages. The minimum wage sets a standard high causing unemployment among adults forcing them to send their children to work. On the demand side, since no minimum wage is required for child labour, employers prefer to employ underage workers. Kaushik Basu has a far more eloquent explanation for the same.

Secondly, the alternative is to educate the child which is not a real option for most poor parents given the quality of government schools and the high fee of private schools. So the real challenge and solution is to create and incentive structure to attract parents and students to schools as opposed to sending them to work.

Schemes like the Mid-day meal and Akshaya Patra would have a far greater effect on reducing child labour than just banning it. These schemes make it cheaper for parents to send children to school since they provide at least one meal a day alongside providing education. Other schemes like providing students with bicycles in Tamil Nadu also help in increasing access to schools and reduce child labour.

The magic, as always, is in providing the right incentive structure and banning child labour merely changes the law and not the incentives.

Last week I heard something on the news that really made me laugh. Which is quite a change from the usual irritation I feel when I see what our government has been up to.

The Ministry of Health has declared 90% of street food unfit for comsumption. So it proposes to start a new program where it will train all the street vendors in basic hygiene and cooking. The general plan is that at the end of this program the vendor would get some kind of certificate or licence which is required to sell food off the street.

So now we cannot eat food unless it is approved by the central Government!

All this from a Ministry which cannot control or report an epidemic accurately.