The Impossibility of Empathy

Empathy could be defined as ‘the ability to identify with the feelings of the other’. More broadly, it could also be ‘the ability to understand and share the feelings of the other.’ The former is a more specific claim where the reflective person is in commune with the sufferer and is able to step inside her shoes with a metaphysical unison. My claim is that empathy, in its more precise meaning, is an impossible virtue. Perhaps, the alternate penumbral conception is, then, our best hope. This need not necessarily be an evil conclusion, but it does challenge some self-deception. I shall summarize my two arguments for this proposition below.

1. Can we actually claim to know ourselves with any degree of security? If one takes an existentialist line, knowing oneself is an ongoing organic process. This is dialogic inasmuch as one identifies oneself in relation with others and at the same time conceptualizes the other from her own judgment. It is an interpretive process where one tries to ‘fit’ one’s self in the historical unfolding of the ‘being’ as a cultural, moral and contextual phenomenon as well as traversing the realms of perception, reflection, negation and assimilation in engaging with one’s people, place, pariah and paradise. None of this is a solid category and all of them stake an elusive truth. This is also not to suggest that we are like blobs of nebula. We do arrive at some self-conceptualization, howsoever malleable it be. There is a point of departure in our journey, howsoever ephemeral it be. And even if it is chaotic we do find ourselves at some point whether in limbo or outside it, howsoever, permeable the boundary be. Yet, this is a deeply personal process (one could here say that this is contradictory since ‘personal’ would pre-suppose ‘person’, at the same time, I believe ‘private’ and ‘individualist’ would be further off-radar.) It is a life-sapping endeavour. Most of us either ignore it completely or push it to the farthest point in oblivion. That being so, it is impossible for us to ever ‘know’ anyone. These points of departures and transitions are important reference points in our quest for finding ourselves and these points vary across people and any similarity is at best a co-incidence. Thus even if we assume that we do come to find, know and define ourselves with reasonable security, it is impossible and, on occasions, invasive on our part to do the same for others. When knowing someone is improbable, it is presumptuous to suggest that identifying with the other is possible.

2. The next aspect is about ‘feeling’. ‘Feeling’ also is a function of self and the same argument, pari passu could be rehearsed here. Nonetheless, one could also adopt a different line of reasoning. Besides the fact that a tragedy strikes its primary victim differently than its secondary witness (primary victim being its immediate recipient and secondary victim gets affected by it in a mediated manner mediated by a third person or situational asymmetry), it strikes even the primary victims differently (this needs to be read with the argument made above regarding ‘knowing’ one’s self). Has not already the massacre killing about a dozen journalists and cartoon-makers in Paris and that which killed about 2000 people in Nigeria marking it the deadliest in recent times affected us differently? Not everyone in Paris and Nigeria has been scarred in the same manner, we aren’t sure if we have even been properly slapped here, let alone bruised. One could add several layers of complications here drawing on the concentric circles of personal relations, but I hope the point has been driven home.

What is being argued above is not an advocacy for insensitivity but about uncovering the limits of our sharing. It is not suggested, even remotely, that we should stop being concerned about calamities that ravish the lives of people. It is only a proposal for us to be fair not only to ourselves but also to those for whom our prayers and sympathies are directed. Lastly, we ought to be empathetic at least in the penumbral sense, because sentience is an important attribute that makes us a community of people. Our conversations and quest for finding our selves would be muffled and snapped without it.



From jokes to insults: the decadence of discourse

The recent spate of insults (masqueraded as jokes) leveled against an emerging Indian actress Yami Gautam on the social media have once again exposed the hypocrisy of both the pseudo-liberals and confused-crits among the intellectual elites.

Some these comments (in the lingua franca of the upper class elites and their comrades also known as ‘tweets’) include:

  1.   “Doctors are recommending kids to stare at Yami Gautam pics to prevent vitamin D deficiency in them. #YamiGautam”.
  2.   “Yami Gautam is the Dean of ‘Fair and Lovely Professional University’”.
  3.   “Everything is Yami Gautam in love and war. Ab Ki baar Modi Sarkaarite.”
  4.   After Rani Mukherji’s Black, they are planning to produce a movie starring Yami gautam!.
  5.   “Guys you can stop using Fair & Handsome. Apply Yami Gautam instead.”
  6.   Some of these Twitteratis have also called her a ‘CFL’.

While some of their objections to representation of women in the advertisements involving the so-called ‘fairness’ creams pertain to objectification or commodification of women, they also argue that these commercials construct an ‘ideal women’ resulting in a form of oppression where others lose their identity as they measure and define themselves against these images.

A cursory look at these comments is enough to suggest that the concerns animating our criticisms of that paradigm are conveniently ignored while we direct comments to Yami Gautam. The remarks calling her CFL, or asking males to apply her instead of their fairness creams, or suggesting that kids stare at her pictures for curing vitamin D deficiency, are also infected with commodification and objectification, in addition to, vulgar misogyny. In addition to this, these comments show a profound lack of both sense and sensibilities.  The movie ‘Black’ was a nomenclature on the experiences of its blind protagonist. Without a single strain, one lived experience was trivialized at the expense of another. Interestingly, there is scant mention of either the market or the manufacturer, while Twitteratis continue their incessant attacks on the actress.

One of the under-noted facts is that the sale of these fairness creams (despite ‘fair and lovely’ being the market leader) has consistently recorded a fall. Their efforts at persuasion as well as enticement (by throwing an open challenge of ₹5 crore to anyone who is not satisfied in just a week!) have not helped and the initial attraction to these cosmetic product has been showing the signs of fading away without abatement. Are they, then painting women with dusky and dark skin-colour as victims en masse? Are they denying them the capacity to reason their purchase (generally for skin-care, for example) or non-purchase as per their own convictions?

Important underlying values of the commitment to liberalism include tolerance and respect for those with whom we may not agree. Granted, these commercials need to change their emphasis; they must not be offensive to any section of the society; they must respect our diversity (ironically, what unites us these days are heat and dust); and must create avenues for human flourish and enterprise. Importantly, they must respect our right to be ourselves.

By the same token, in our criticisms, we must also be alive to the dangers of the ideology of enforced sameness and homogeneity. Liberals also recognize that someone like Yami Gautam has a fundamental right to free speech and contractual freedom. Those who use cosmetic and skin-care products are entitled to determine their own conceptions of good and beauty. Discussion, debates and wider engagement involving multiple interest groups (including the commentators and intelligentsia) could be a preferred way of generating awareness and revising norms. It is tough, time-consuming and often costly. But we cannot alternate conceptions of democracy to our convenience. Virulence, violence, humiliation, labeling, condescension and condescension are a non-starter.

Ignoring several critical players, from corporations to government that shape our lives and choices in profound ways, that we chose Yami Gautam as our subject of attack tells the story of the decadence that defines our discourse.

The Liberty-Equality Debate: Comparing the Lawrence and Naz Foundation Rulings

(This post was originally published on the Oxford Human Right Hub Blog. I am grateful to the administrators for allowing me to re-post it here.)

Last month marked the 10 year anniversary of Lawrence v Texas, where the US Supreme Court ruled that laws that criminalised sodomy were unconstitutional. Like June 26 2013, June 26 2003, was also a historic day for the LGBT rights movement. For many LGBT rights activists, Lawrence was their Brown, the historic civil rights case that found racial segregation in US public schools unconstitutional. The significance of the Lawrence ruling, however, is not restricted to the US.

In this post, I shall reflect on Lawrence’s conclusions and compare it with the approach taken in the Naz Foundation case (decided by the High Court of Delhi, India which decriminalized consensual sex between homosexual partners). In comparing these two rulings, I examine the interpretation of liberty and equality provisions found in the US and Indian constitutions.

In Lawrence, the majority opinion of the US Supreme Court invalidated the prohibition on homosexual intercourse using the constitution’s due process clause predicated on liberty, but did not engage with equal protection claims. Catherine Mackinnon argues that majority’s singular reliance on due process to examine for substantive validity of law indicates that ‘empty formalism of legal equality…is the limit of equal protection’s visible horizon.’ Conversely, Justice O’Connor held the law ultra vires the ‘equal protection clause’ as it ‘[branded] one class of persons as criminal based solely on the State’s moral disapproval of that class and the conduct associated with [it]’.  Because the US Supreme Court approached liberty and equality as isolated values, I shall call its ruling a ‘detached view’.

An example of a different approach, where liberty and equality are seen as integrated, rather than detached concepts, can be seen in Naz. In this case the High Court gave an integrated reading of Articles 14 (equality), 19 (free speech, association, etc.) and 21 (life and personal liberty) of the Indian Constitution, bringing, in a sense, due process and equal protection together. It looked at the criminalization of sodomy from different optics including dignity, privacy, liberty and equality. By holding that the legislation interfering with liberty ought to satisfy the demands of fairness, reasonableness, and proportionality, Naz, like the majority opinion in Lawrence, relies on due process. Yet, it proceeds further to integrate it with a substantive conception of equal protection. It notes that anti-sodomy laws inevitably target the homosexual identity branding them criminals and causing pervasive prejudice leading to their marginalization and persecution. These laws force LGBT individuals to conceal their identities and pass as heterosexual persons. The fear of violence pushes them ‘underground’ and also dissuades them from accessing AIDS prevention material and treatment’. This, the court noted, makes homosexual persons more vulnerable to, inter alia, AIDS than their heterosexual counterparts. These are systemic issues where infringement of liberty and denial of equality are intimately connected. Here the integrated approach of Naz seems more suitable than the detached one in Lawrence.

At a deeper level though, it remains under-appreciated by both the US and Indian Courts that inequality here pertains to heteronormativity which presumes heterosexuality as ‘normal’ and homosexual relations as immoral and deviant. The expectations this ideology entail mean that inequality exists not merely in individual relations but also permeates social institutions and systems. Justice Scalia in Lawrence observes that legalizing homosexual intercourse is not limited to sexual relations but extends to organization of family and family law including the marriage, adoption and inheritance laws. The recent Windsor  ruling, interestingly, at several places, integrates liberty and equality (see pp. 20, 21, 25). However, given the constraints of federalism, it is unclear if it would benefit LGBT people living in states that have not recognized same-sex marriages.

The inequality of power that manifests in LGBT persons’ inability to determine or change the organising principles of society (for example, marriage and family) by exercising one’s autonomy, strikes at both issues of access and opportunity. In the context of structural and systemic discrimination, taking a detached view of liberty and equality at best yields incremental gains. A multi-focal and integrated view, that questions the organizing principles and supporting legal and social structures, seems a more holistic judicial strategy.

Is Irom Sharmila attempting suicide? — Part I

ImageA criminal court in Delhi is hearing arguments in a case against Irom Sharmila for allegedly attempting to commit suicide (which under the Indian Penal Code, 1860 is punishable with simple imprisonment for a term which may extend to one year, or fine, or both.)

Sharmila is a human rights activist from Manipur (India). On November 2, 2000, Assam Rifles, a sub-division of Indian Army, massacred 10 civilians standing at a bus-stop in what came to be known as “Malom Massacre”. Since that day, Irom Sharmila has been on fast and is only fed through nasogastric intubation to keep her alive. Her primary demand to the Indian government is that it repeals the Armed Forces Special Powers Act (AFSPA). This legislation allows the central and the state governments to declare certain areas as ‘disturbed areas’ where army would have practically untrammelled powers of search and seizure, arresting, detaining, injuring and even killing people. AFSPA has been enforced primarily in Jammu and Kashmir and in the North-eastern states which have been troubled by cross-border terrorism and/or internal insurgency.

The question before the court is this: Whether Irom Sharmila by undertaking a fast unto death and persisting with the same and showing a relentless resolve of not abandoning it till the Central Government abolishes AFSPA has attempted to commit suicide?

However, this question involves an antecedent question: what suicide is? Are all acts involving putting oneself in a position risking death, an attempt to commit suicide? If not, then on what principle should the demarcation happen? These questions are important because fasting, particularly in India, has had a tradition of being used as a powerful medium of protest. Gandhi popularized it in the freedom struggle. In a more recent manifestation, we saw anti-graft crusader Anna Hazare using the similar strategy. Many of these fasts were instrumental in galvanizing people, bolstering a non-violent revolution and compelling the government to reconsider its laws and policies.

Can the demarcation happen along the lines of ‘dying for a cause’? But if it is only about that, what do we have to say where a person, outraged by a government for almost reneging on its promise of carving an autonomous smaller province from a larger one, dies by hanging himself? How should we understand self-immolations in Tibet against the Chinese rule or by a medical student protesting against quotas in higher education? What about the farmers who were compelled to kill themselves because they were neck-deep in the liabilities, witnessed a drought, failed crop season and meeting the ends of the days itself became a struggle? Was that a sign of protest or a resignation to misfortune? But merely ‘protest’ may also be an insufficient parameter. For example, suppose in my protest against increasing animality among the males in Delhi, I shudder to associate myself with that culture and community and decide to kill myself. It is only after we answer these question can we arrive at any answer for the preceding question.

Of course one may say that this inquiry may be avoided by simply saying that criminal law requires intention and thus ‘intent to die’ is a sufficient test. But we know that knowledge of the probability of an act resulting into a crime is also punishable. By that logic, the knowledge that an act puts one under a serious risk of losing life can also be likewise brought within the conspectus of attempt to commit suicide. That surely would be an incorrect view if generalized to a level of principle. For example, a soldier employed in armed forces patrolling borders also puts himself at a grave risk of death, particularly if it is in the hostile terrains like Siachen Glacier where hundreds of soldiers from both India and Pakistan have lost lives due to extreme weather conditions. Or for that matter, people involved in high-action and extreme adventure sports put their lives to grave risk. In fact, as many as 212 people have died in 1920-2006 in a bid to scale Mt. Everest. But surely they are not attempting suicide despite the high probability of their acts posing great risk to their lives.

Whether location of the cause, internal or external, to the suicide is a principled distinction? The answer to this ought to be in the negative. It was reported that 20 persons committed suicide in Tamil Nadu distressed by the prolonged illness of their Chief Minister M.G. Ramachandran! Durkheim, in his masterpiece Suicide, also rejects the approach of finding the cause internal to a person. Instead, he classifies suicides into various types and argues for locating the causes externally to the social factors. In fact, Durkheim correctly notes that, suicide statistics could be unreliable. For example, they fail to record accidents which could potentially have been suicides. For example, if someone drives in an inebriated condition and rams her/his car into a tree and dies, it most certainly would be deemed to be an accident and person who miraculously survives it would most surely be treated in a hospital than tried for a suicide attempt.

The Indian Supreme Court has given two judgments on the question of constitutional validity of the provision relating to attempt to commit suicide in the Indian Penal Code, 1860. In P. Rathinam v. Union of India, (1994) 3 SCC 394, the court held the section to be ultra vires Article 21 (Right to life and personal liberty) observing that right to die is implicit in right to life. In Gian Kaur v. State of Punjab, (1996) 2 SCC 648, the court overruled Rathinam and restored the impugned provisions. Unfortunately, none of the judgments delved on the abovementioned dilemmas en route their judicial voyage.

The next part would be an attempt to arrive at a principle to see more clearly what act can really be understood as suicide and from that attempt to suicide. I believe there is a merit in this inquiry before abandoning the ‘attempt to commit suicide’ wholesale like Rathinam did. We may disagree with the idea of imprisonment and fines, but it is consistent with our ethical self-understanding of a social community that suicides ought to be prevented and the action in this regard needs to be taken both at the socio-political as well as individual level. And while we do that, I am sure we would be able to discern the fallacy in prosecuting Irom Sharmila for attempting suicide as she continues her valiant crusade against a draconian law.      



Professor Ronald Dworkin passed away on February 14, 2013 after battling with leukemia. His admirers reckon him to be perhaps the most important legal philosopher of his generation. The pre-eminence of a scholar is not inferred from the frequency of right answers (ironically) but from the influence s/he has had on the discourse. In that sense, in my view, he ought to occupy the pantheon. I would hesitate to include the impact on readers as a criterion here inasmuch as what is not covered of it in the previous criterion would be too subjective and diverse to be stated generally. I can only present my case here.

Having had only a little idea of law before joining NALSAR, I was actually scared of the term ‘jurisprudence’ when I first saw it in the Prospectus. Frankly, the name intimidated me. I must confess that I never was an avid reader and only began to take some interest in reading when I was in the second year of law school. When I gave law school entrance exams, I said that the only positive outcome of my failure in these exams would be that I would not have to study jurisprudence! Anyways, I cleared the exam and started with my undergrad legal education. I liked reading sociology. Professor Kannabiran was superb. I scored well in that and this gave me some confidence. I scored well in Law and Poverty surprise test and that gave me a big boost. That was my first course with Professor Dhanda, who was and still is inspirational. The second year got over and third year came knocking and came with it ‘Jurisprudence’. I wasn’t as scared as I was two years before but deep inside, I still found the name intimidating. Jurisprudence. I reassured myself that this too shall pass like previous courses. I liked the course, got a fair idea of various major schools in jurisprudence, read my readings diligently, did a decent project, wrote well in exam got a good grade and I was happy. Next, semester we had Jurisprudence II. I was looking forward to this course. This was supposed to be primarily about legal capacity and rights jurisprudence. We got our reading modules. I read all of it, relished most of it, but one reading stuck with me. I read it once to understand and make notes. I read it again, now to only soak its beauty. It was magnificent yet meticulous. I highlighted some paragraphs and went to my friends saying: “Wow! What a passage, what a line, what expression! Isn’t this brilliant?” I read it again before going to bed. Didn’t Keats say “A thing of beauty is a joy for ever: Its loveliness increases; it will never/Pass into nothingness; but still will keep/A bower quiet for us, and a sleep/Full of sweet dreams, and health, and quiet breathing.

A transformation was taking place. I realized that Jurisprudence as not merely a course but a way of life, potentially a religion. This reading was a chapter entitled Taking Rights Seriously from Dworkin’s first book Taking Rights Seriously. I procured a copy from the library and started reading it. I read Hard CasesModel of Rules I & II, and so on. By the end of this semester, two things became clear to me. First, I shall make a career in academia. Second, I shall study Jurisprudence in post-graduation. Quite a transformation indeed!

Next semester, new course ‘Judicial Process and Interpretation of Statutes’ fixed a meeting with Hercules J. and now I was reading Dworkin’s masterpiece, ‘Law’s Empire’. ‘Law as Integrity’ seemed to me an art of making things possible. Dworkin expertly defended his thesis against the towering forces of the day, legal positivism and legal realism. You may not agree with him. I do not for one agree entirely. But when has beauty been an artifice of perfection?

I filled up the LL.M. forms of reputed universities and could only get through NYU. This was a big moment because my idol Professor Dworkin taught there. But this was only half the battle. To get oneself enrolled with Dworkin’s seminar, one needs to fill up a separate personal statement, which he reads to select eligible students for his seminar. My application got rejected. I was distraught. I went to New York nonetheless, saying to myself, in a typically ‘sour-grapes’ fashion: “In a way it is good that I don’t have this 5-credit seminar, I can study two courses in the bargain. And then his colloquium is open for public where the presenter presents her paper, so I would attend that and what I lose is only his classes where he would discuss these papers with the students.”

I reached Mercer Residence, opened my computer and checked the seats available in different courses. Dworkin’s seminar showed ‘7 available’. I wrote an e-mail to his assistant, Lavinia Barbu inquiring whether in light of this fact, could I still bid for the course? She replied:

“Hi Ajey,

I am really sorry. All seats are taken.  Students from the philosophy department and other NYU departments do not register through ABRA so you cannot see all of them. As I said before a lot of candidates were qualified and it was a particularly difficult selection choice this year.

Best regards,

Lavinia Barbu”

I wrote a mail back to her requesting whether I could have only a brief appointment with Professor Dworkin since I have been his admirer for most part my law school life in India and I would just like to meet him once. I promised that this would be a brief meeting and would not be about the seminar. She replied that he was quite busy and she could fix my appointment only later in the semester. That ended there.

Classes began. On Thursday, 4 PM to 6 PM I was at the Lester Pollock Center attended the colloquium’s public meeting, to catch a glimpse of him and see him speak. The colloquium got over. I came back to my residence. Routinely, I opened my laptop to check for mails. It had a mail from Lavinia. With my heart filled with anticipation, I opened it. It said:

“Hi Ajey,

One student has dropped out today, and Professor Dworkin would like to admit you to his class.

Today ends the add/drop class.

Let me know if you are still interested and I will work this out with the academic services.

I will be in Lester Pollock for most of the Colloquium this afternoon.



And this was my Archimedes moment. I ran all the way from Mercer Residence to Furman Hall (Law School Building, about 500 metres away). Since, I had been at the Colloquium whole of afternoon, I must not miss her. I flung past the door, the guards called me, asked for my I-card. I did not have that. The lady was sweet asked me for my name and matched it with the records, allowed me in, and asked who I was looking for. Gasping for breath, I told her the story. She said: “Relax”. She informed me that Lavinia had left. I asked her if she could tell me where Professor Dworkin’s office was. It was VH 413F. I walked across the road, reached Vanderbilt Hall, climbed four floors up, took some turns and found his room. There was his name plate. “Should I knock the door?” I asked myself. “No, no. He must be busy.” I walked back a few paces, when I turned again towards his office. “Should I knock the door?” I asked myself, again. “Naah. He would be busy. It would be improper to disturb him.” I walked back. “Should I click a photograph of that door, of that name plate?” I did not do that. I think, wisely.

I met Lavinia the next day. The administrative issues were sorted out. I dropped two courses and added the Seminar on Legal, Political and Social Philosophy instead. Next week, Wednesday, I sat with other students of the course and in came gingerly (he had hurt his right foot), Professor Ronald Dworkin. “Was it for real?” I think I would have pinched myself once to come to terms with it! That moment, I thanked God, my Parents, my teachers and friends, all at once. The point of preparing for post-graduation in law, doing LL.M. in Legal Theory at NYU, borrowing big fat loans for that, using up my parents’ years of savings, travelling for the first time out of India, living meal after meal and day after day on falafel, seemed to have got fulfilled. I read Paulo Coelho’s Alchemist once and I remembered: “And, when you want something, all the universe conspires in helping you to achieve it.” The discussion got underway and for 10 minutes, I had no idea who was speaking what. I was too awestruck. From next class onwards, I used to sit on the chair next to him. We would exchange smiles before the discussion would begin and end the class in the same fashion. But I began to participate actively, henceforth.

I made some decent points too. I vividly remember our seminar discussion when we were discussing Professor Lewis Kornhauser’s paper. It argued that ‘law as integrity’ when analysed in light of real life institutional constraints, it was neither feasible nor desirable. Towards the end of the discussion after demolishing that argument and explaining ‘law as integrity’ himself, Dworkin asked if there is anything that may still support the argument of the paper. I replied, “Perhaps, the existence of de minimus rule.” He said, “This is interesting. Let’s discuss de minimus.” He devoted 10 minutes of discussion time on that day. After that, he said, looking at me, “I think I will suggest it to Lewis tomorrow that his paper would be strengthened if he discusses the de minimus rule.” Could there be a bigger reward than this? For me – there is none. I came out of the room with a feeling unsurpassed.

At some later point in the semester, I requested him for an appointment. He granted me one. I met him in his office. He sat beside me on his sofa. I tried explaining him what sitting in his class meant to me. I said all that looking straight at the wall and when I turned my face towards him, he smiled and said warmly, “Thank you. I am grateful.” I had also bought a copy of his last book “Justice for Hedgehogs“, the final spell of the magician where he lays all his tricks out with majesty and mastery. I took the book out and requested him to sign it for me. He did it, gleefully. This book will remain my prized possession.

Professor Dworkin did not take the seminar the following year. I cannot believe that we were the final batch of students, he offered his seminar. While in a small corner of my heart, I consider myself lucky and eternally thankful to my parents and Almighty. Simultaneously, however, the light began to fade, a nauseating stillness ensued. I pressed one hand against my forehead. My eyes were wide open. I do not know for what because I wasn’t seeing anything. I stood motionless and grief enveloped me. I will miss him. He was a generous teacher. He allowed me to make points that in comparison with some others seemed juvenile. Yet, they got ‘equal concern and respect.’ A motto he coined – A philosophy he lived and stood by.

Interestingly, his last work was entitled “Religion without God“. I can imagine him having a passionate discussion about it with the Gods in heaven (though I think he was an atheist), exhorting them to make sense of things and show the right answer to all those derailed souls who made a complete bloody mess of this solemn quest.

That completes the Pantheon. RIP Professor Ronald Dworkin.