The laws that impinge on fundamental rights are also those that empower the intolerant
N R Narayana Murthy has done a lot more for the nation and the people than many of the vociferous politicians who called for him to be expelled from Karnataka state for his remarks on the national anthem. Sachin Tendulkar did a lot more for the nation at the batting crease than he took away by cutting a cake with the national flag on it. Mandira Bedi, arguably, didn’t do great things for the nation, but didn’t hurt anyone either by wearing a sari with the flag on it. And the man who filed a complaint, and the judge who issued an arrest warrant against Richard Gere for kissing Shilpa Shetty in public thought nothing of the reason why Gere was on stage in the first place.
In any society, it is not hard to find intolerant people who wish to impose their chosen intolerance on the rest. The trouble is, in India, there are laws that give license to such individuals and groups. Gaurav Sabnis explains:
While tolerance in the society is a desirable goal for different reasons, this particular ailment can be solved only by abolishing the ridiculous laws which curb freedom of expression. However there is no constituency which demands abolition of these laws, so they remain on the books. [Vantage Point]
Those laws have created incentives for the intolerant to indulge in an arms race, a phenomenon this blog calls competitive intolerance. Flaunting intolerance has become a symbol of demonstrating political clout, because it is so easy to do. Everyone gets into the act and a lot of time, energy and money is wasted in issuing warrants, passing resolutions and yes, in publishing condemnations. The state itself—and increasingly under the UPA government—has, in addition to caving in to intolerance, indulged in unnecessary conscience-keeping that is at once laughable and abominable.
It is necessary for the laws to be repealed in order to defuse the arms race. The test for laws that abridge fundamental rights has to be whether or not they strengthen the incentives for tolerance. The benefit of the doubt should go to the right, not the abridgment. But as Gaurav points out, this has no political constituency today, given that all major political formations are engaged in the appealing to parochial and sectional interests. Judicial precedents established in the higher courts can help to an extent, but not without fueling another round of criticism over ‘judicial activism’ (fast becoming a phrase that Indian political discourse likes to torture beyond recognition). Such criticism should not deter citizens from taking the battle against intolerance to the courts, for political parties like winners, and some of them are likely to hitch their wagon to horses that show that they can win.
Update: A Supreme Court bench has ruled that the government has the power to ban a publication in the interest of public order, even if it means restrictions on the freedom of expression. A very reasonable judgment indeed, except that the checks and balances on those powers are inadequate—highlighted by the fact that the court’s verdict was with respect to a play the Karnataka state government banned in 1995.