On coercive majoritarianism

Why it is not about mere “intolerance”

Some of the most important issues in Indian political discourse are confused by wrong language: we either misuse certain terms or just frame the issues in inappropriate words. Secularism and communalism are instances of the former. The contemporary debate over “intolerance” is an example of the latter.

Acts over the past few years — from the killings of Narendra Dabolkar in 2013, to M M Kalburgi in Dharwad and Mohammed Akhlaq in Dadri earlier this year — go beyond being acts of intolerance. Intolerance, both violent and non-violent, have been with us for a long time. As this blog has argued, competitive intolerance has been an instrument of asserting political power at least since the time of the Rajiv Gandhi government’s caving in on the issue of Salman Rushdie’s Satanic Verses, and perhaps even before that. Every religious and sectarian community is guilty — from Catholic archbishops to Hindu acharyas, from Mullahs of various stripes to Sikh and Jain leaders. Competitive intolerance is of course, also asserted on caste lines in various parts of the country, as the Perumal Murugan case shows.

Intolerance is a big social problem in India’s evolution into a modern, cosmopolitan civilisation where there are not only people of various castes, creeds and ethnicities, but where they move and settle around on a historically unprecedented scale. Competitive intolerance must be tackled, and the best way to do that — as I have argued — is to uphold free speech and expression, which includes the right to offend, and come down heavily on those who resort to violence. Our politics is not there yet, but the path to reach such a state is available for the leaders who wish to use it.

What we are facing today is not competitive intolerance, but something much broader: coercive majoritarianism. Simply put, our society is witnessing an attempt to enforce the mores of the majority onto everyone else. Obviously, the mores are not clearly defined because of the huge variance in practice across the country. The majority itself is not clearly defined because it is contextual. There is a Hindu majority in India, a Marathi majority in Maharashtra, a Muslim majority in Srinagar or a caste-majority in a municipal ward. Majoritarianism is the imposition of the norms of these contextual majorities on everyone there. It is coercive because the government machinery in the context — from police to magistrates to legislators to ministers — side with the majority, at the cost of individual liberty. This is because the government officials are cut of the same cloth as the society they operate in, and have internalised legitimacy of tradition over that of the Constitution.

Coercive majoritarianism plays out on a national scale in the form of pushing popular Hindu agenda, like the cow slaughter and beef bans. This one issue unites more Hindus than any other in broad traditions of the religion. So it has a national impact — unlike say, caste lynchings and Khap panchayats, which are also instances of coercive majoritarianism but are limited to certain places. Another reason why coercive Hindu majoritarianism receives attention is, obviously, because the BJP and Prime Minister Narendra Modi are perceived as either representing or being sympathetic to it. The fact that prime minister chose not to comment on it, and at least initially allowed his cabinet colleagues and MPs to defend the violent mobs, further reinforced the perception that the government tolerates, if not condones, coercive Hindu majoritarianism. As the successful managers of Mr Modi’s campaign should know, once a public narrative and psychology is created, it gains a momentum of its own. Ergo, we find ourselves in the midst of coercive majoritarianism and the backlash against it.

Yet, it would be dangerously wrong to believe that Hindu majoritarianism is the only game in the country. Like competitive intolerance, majorities everywhere are trying to assert themselves by pushing their agenda onto everyone in their space. We see this in many states: Jammu & Kashmir, Punjab, Maharashtra, undivided Andhra Pradesh, Karnataka and Kerala. It is also happening in villages, towns and urban neighbourhoods, although we do not see it because the national media do not cover it. Everywhere there are trends of a social consciousness that seeks to respond to diversity and pluralism by imposing a majoritarian order. Democracy is offered as justification for this. But India is a republic in addition to being a democracy. This means that there are certain basic values — like individual liberty and fundamental rights — that cannot be pushed over because the majority of the population so desire.

Coercive majoritarianism is a dangerous trend because, like intolerance, it is competitive. It comes at the cost of individual liberty. Conversely, only the relentless defence of individual liberty and constitutional values can counter coercive majoritarianism of the current time. Unfortunately, few political parties and leaders can relied upon to fight majoritarianism, for the simple reason that siding with it is a easier route to power. Perhaps that explains why parliament is discussing “intolerance” rather than the real problem—coercive majoritarianism.

When should the government subsidise training filmmakers?

There is no case for government to subsidise FTII (and, for that matter, IITs and IIMs too)

One of the numerous controversies surrounding the Modi government’s appointments in the education sector revolves around a minor television actor being appointed the chairman of a government-run institute on the basis of his party, and perhaps ideological, affiliation. Students, alumni and many public commentators have opposed the appointment of Gajendra Chauhan on account of his weak acting credentials and lack of stature in the industry.

Mr Chauhan’s critics might be right. His defence — that he is being judged ahead of his performance — can also be taken at face value, not least in a country where “officially certified” graduates are unemployable, and great actors and film-makers need not necessarily be good administrators.It is not as if having great personalities running the film institute has prevented the Indian film industry from distinguishing itself through sheer mediocrity. Mr Chauhan does deserve a chance.

The Film and Television Institute of India is a government run institution. The elected government has the prerogative to appoint whoever it likes. If students and faculty do not like it, they can voice their protests, which the government ought to listen to. But if the government does not, or does not accept the criticism, then that should be the end of the matter. Students and faculty who cannot accept Mr Chauhan’s leadership can decide to quit. Whatever your politics, this is the right conduct in a republic. With apologies to John Roberts, the Chief Justice of the US Supreme Court, it is not the purpose of democracy to protect the people from the consequences of their electoral decisions.

However, the bigger issue is why is the Union government running a film institute and training actors and filmmakers with public funds? The economic argument is that the government can subsidise education that has large externalities, if there is an undersupply of such education. In other words, the reason to subsidise medical education (whether or not through government medical colleges) is that a doctor benefits society even when making money for herself. If there are too few doctors, there is a case for subsidising medical education. If there are too many of them, it doesn’t.

So do actors and filmmakers have large positive externalities? To the extent that entertainment is necessary for the well being of individuals and society, then it is possible to make a case that filmmaking ought to be supported with public funds. But are there too few actors? Are there insufficient incentives for the private sector to invest in filmmaking institutes? You could argue that a few decades ago, there was a need for government to subsidise Indian actors and filmmaking. It is difficult to argue that is the case today: the film industry was worth over $2 billion last year and almost produces more films than the United States, China and Japan (the next three biggest producers) combined. There are too many films. There are too many television channels. There is an oversupply of films, television programmes, actors and filmmakers. It makes no sense to subsidise film-making in this situation. Privatising the Film and Television Institute of India is a good idea, especially if it can use the autonomy to improve industry standards.

In a twitter conversation, a fimmaker retorted saying if government can run IITs and IIMs, then why not FTII? The answer really is that just like FTII, the government should get out of running IITs and IIMs too. Where there is need for government is in the running of 665 universities where around 30 million students are enrolled. All the IITs and IIMs together account for a mere 15000 students. The poorest student who secures admission to IITs or IIMs is likely to secure grants, scholarships or loans to pay her fees. On the other hand, the pure sciences, social sciences and arts need greater public funding because of the dismal state these disciplines are in. Universities represent education in its broadest sense, and has the broadest externalities — an educated population is in the public interest.

The debate on a few elite institutions is misplaced. The government ought to get out of running film, engineering, management and law institutes. There is no case for pouring scarce public funds in areas where there is a glut and where there are enough incentives for private provision.

A democratic death knell for individual liberty

A referendum is a bad idea

Caught in a political tussle with the Union government that has administrative and “superuser rights”, Delhi’s Aam Aadmi Party government has thrown up the idea of a referendum to decide whether the union territory should become fully a state. Since there is no scope for a referendum within India’s constitutional structure, everything about the proposal—from who are the voters, to who will conduct it to what does any result mean—is an open question.

Regardless, the proposal for a referendum is dangerous, poorly conceived and might destabilise India’s politics more than anyone has imagined. Not for the textual reason that the Constitution does not permit it, but for the deeper, conceptual reason as to why the Constitution does not permit it.

There are two broad arguments for representative democracy: first, the practical transaction costs of taking every issue to all the voters are massive for anything larger than a community of a few thousand people. It would be prohibitively expensive even for a small Indian state to decide every issue by asking voters directly. Technology reduces costs: it is possible that in the coming decades, the availability and adoption of technology will make referenda rather inexpensive to conduct.

So should human civilisation move ahead to direct democracy when transaction costs of referenda are lower than the transaction costs of representative democracy (all that money spent on parliament, legislators and so on)? Not quite. That is because the second argument for representative democracy–even with the quality of legislators that we often detest–is that direct democracy can lead to highly illiberal outcomes. It would be dangerous enough in a homogenous, egalitarian society. It would be extremely risky in a highly diverse society like India’s. Politics is often a contest for relative power among different communities, quite often expressed through imposition or prohibition of their mores. In India we are used to thinking in terms of the majority and minorities in ethnic-religious terms. This is bad enough. But a majority is merely a number, and it is possible for majorities and minorities to form over political issues. Even in polities divided along religious lines, have we not seen conservative elements of religious communities come together to proscribe individual liberty?

That is the danger. The biggest casualty of direct democracy will be the liberty of the individual. The Indian Constitution is a balance between a democracy that expresses the will of the majority, and the fundamental rights of the individual. Weaken this edifice and individual liberty will be the first against the wall.

Referenda are dangerous not merely because people in some states might choose to secede from the Indian Union, but really because rule-by-referenda will be the death knell for the rights of the individual. There is no safeguard for liberty in a referendum.

The AAP government in Delhi would do well not to stoke fires it cannot control. If it does want to assess public preferences–for administrative or political purposes–it can conduct large scale public consultations that ask thousands or hundreds of thousands of people for their opinion. Results of such a consultation will have no constitutional basis, but can go some way in bringing in popular sentiment into public policy.

Related Posts: Dogma, Reason & Democracy; and how to escape the tyranny of the ignorant.

Where there is no party line

Almost five years since the first stamp paper was stamped at a registrar’s office in Chennai, it might be a good time to share some thoughts and experiences to deter other thoughtful, unsuspecting souls from attempting something similar.

Think tanking in the age of extreme partisanship

Takshashila People

One reason there has been a fall (okay, precipitous fall) in the frequency of posts on this blog is that the day-to-day challenges of building an upstart think tank drain one’s time and energy. Another is laziness, lethargy and procrastination. Yet another is twitter, which is still the path of least resistance for the current of thought to reach the ground of public discourse. Laziness and twitter are easy to understand reasons, but what is this business of building a think tank? Almost five years since the first stamp paper was stamped at a registrar’s office in Chennai, it might be a good time to share some thoughts and experiences to deter other thoughtful, unsuspecting souls from attempting something similar.

This post is written with the intent of being the first in a series. But just like how N is initially unknown in a 1/N series of tweets, it is by no means certain that this series will be any longer than this first post. With that disclaimer, let us look at two of our core values: funding, and independence & non-partisanship.

From the outset, Takshashila’s founders decided that the organisation, a non-profit public charitable trust, will operate solely on Indian money. After all, it would be ironic for an ambition that reads “building the intellectual foundations of an India with global interests” to be financed with foreign donations. Also, foreign funding would hand detractors and opponents of our ideas a convenient handle to deliberately mischaracterise our public policy arguments as playing to a foreign agenda. Since many of the arguments that we make ruthlessly in the national interest are counter-intuitive, they are vulnerable to smear campaigns. Imagine arguing (as we have done) for 100% FDI in defence production with an unconditional, unrelated grant from a respected foreign foundation. The elimination of foreign funding has made life a lot more tougher than it could have been, but since we are set for the long haul, it is a price we have happily paid.

Maintaining independence and non-partisanship the other hard challenge, and one we’ve managed to address quite well. First, while it is relatively easy to manage an organisation (a private corporation, an association or a political party) that has an official view that everyone must fall in line with (or leave), it is much more difficult to manage one that doesn’t. A think tank and a public policy school cannot function effectively unless its members have full intellectual freedom. Yet when this freedom causes a diversity of opinions to be expressed, there is often a internal tension among those supporting different positions, and an external confusion as to whether the institution supports one or the other view. The one on whose shoulders falls the job of managing the institution, yours truly’s in this case, has to act as a mediator, negotiating platform and conciliator internally, and an official disclaimer-issuer and ‘brand manager’ externally. This is not easy. Worse, in a small start-up institution like ours, there is always the possibility that my own views–and those of the other co-founders–are conflated with that of the organisation’s, which sometimes leads to pulled punches, less trenchant blog posts and blander language in newspaper columns.

Since 2010, public discourse in India has become edgy, sharply divisive and polarised. Everyone is quick to paint an unfamiliar or unsavoury opinion as an attack on one’s favoured politician or party. The political campaigns of the 2014 general election had massive online components, and online political entrepreneurs seeking to gain political prominence and spoils of power by attacking ‘the other side’. So Takshashila was on Congress payroll for the BJP’s vociferous online partisans (who we endearingly call “the wrong wing”), an RSS front for the Congress’s beleaguered but spirited online brigade and pro-corruption for Anna Hazare & Arvind Kejriwal supporters. The Communists somehow forgot to attack us, which is perhaps an indication of their irrelevance, or ours. Kabira had gone to the bazaar to ask for everyone’s well-being, but ended up being attacked by them all. There is a lesson in this which we took and we teach.

Another interesting phenomenon was that those who donated to us—including Rohini Nilekani, our first donor—did not once even hint what positions Takshashila should or shouldn’t take. But those who didn’t give us any money often vociferously insisted what political positions we should take for our own good. It is now not too hard to detect political partisans pretending to be broad-minded philanthropists. It is also heartening that there are enough of the latter to lend their support to us, in big or small ways.

I have always found the allegation “you are saying this because XYZ is your donor” an indication of the person making the allegation projecting his own values on his target. As acts of honour and integrity even in today’s famously compromised media industry show, not everyone who draws a pay cheque necessarily dances to the tunes of the owners or donors. For small startups like ours, with low stakes, it is relatively inexpensive to be independent and non-partisan and call things as we see them. Judgement calls on the safety of our members and their families apart, there is little to make us toe anyone’s line. So we merrily advocate what we see as the national interest, and we try to persuade others to see things our way.

This does not mean that we are “neutral”. Our ideological leanings are openly advertised: freedom, a culture of tolerance, an open society and strengthening India’s national power. These set of ideas can be called “liberal nationalism”, but it is the values that matter, not the label.

It’s not enough to be and act independently and in a non-partisan manner. It is important to be perceived as such by the people we are trying to persuade. That was a problem I had no good solution for until the good Jay Panda, BJD MP from Odisha, gave me an idea from his own experience: set up a Ombudsman with a mandate to deal with complaints regarding these values. The Ombudsman can also solicit informal and formal feedback if he deems necessary. So we instituted a powerful Ombudsman—a trustee with no role in management—who anyone can directly write to. It’s early days yet, but this does appear a good process to manage the tensions that arise from an organisation whose members are making forceful arguments in a politicised public discourse. In our view, “non-partisanship does not mean non-engagement. On the contrary, Takshashila’s policy remains to engage with all political parties while remaining firmly independent of them. We believe that engagement with the political process is an important aspect in achieving public outcomes in a democracy.”

The biggest asset Takshashila has today is the goodwill of its supporters and the credibility among a small section of India’s elite. Our success will continue to come from this, hopefully growing constituency.

Why a Swachch Bharat cess is a bad idea

A tax break will work better

Prime Minister Narendra Modi’s initiative to clean up the country showed that he was prepared to tackle the most difficult problems India faces—cleanliness, hygiene and sanitation are Mahatma Grade Problems, caused by a simultaneous combination of individual, social, market and government failures. The Swachch Bharat initiative has come about because he used both his popularity and power to try and change mindsets and attitudes. To succeed, it needs the government, business and social leaders to change peoples’ minds and moral incentives. If it becomes yet another government programme, it is bound to fail.

So the Modi government’s proposal to impose a cess on telecom services to finance the Swachch Bharat campaign should cause us disappointment and alarm. It is the wrong approach to the problem, using the wrong method. Here’s why.

Levying a cess dilutes the moral incentive that a borderline conscientious citizen faces. Instead of a gnawing feeling when she sees garbage in public places, the marginal citizen is likely to feel the same-old, “I’ve done my part but the government is not doing its job properly”. There is evidence that compliances rates (for tax payments and other rules) goes up when citizens see the government delivering honestly and effectively. Similarly, the perception that government is inefficient and corrupt reduces compliance. In other words, levying a cess on citizens is not only likely to cause them to outsource their guilt and responsibility, but also try and avoid having to pay the cess. Swachch Bharat should be about emphasising that hygiene and sanitation are about personal honour and dignity, not about pay-tax-and-forget.

That’s not all. A cess is a bad way to raise revenues. A cess on an unrelated activity is a terrible way to implement a bad way to raise revenues. As this blog commented on the previous government’s use of a cess on restaurant bills to finance education, there is no better way to signal that a government has confused public finance priorities than a cess. If a programme is important, it should be financed through the core budgetary revenues. Clearly, one of the prime minister’s most important priorities ought to be enough of a priority to be funded through the conventional budget.

If at all a cess has to levied, it should be on non-essential spending. Furthermore, a specific tax on an unrelated economic activity merely to raise revenues is a very bad idea. Telecommunication services are already subject to heavy price regulation, leading to very bad quality of services across the board. An additional tax on these services will burden consumers, impact telecom service provider revenues (and hence the license fees they pay the government) while doing nothing to improve service quality. Telecommunications services appear to have been chosen for the cess mainly because it is easy to collect from them, and people will have to make calls and access the internet anyway.

Why could the tax not have been levied on entities and industries that dirty public spaces? At least that would have attempted to recover the cost of the negative externalities.

But here’s an even better idea to implement Swachch Bharat: give a Swachch Bharat tax break to all income tax payers. When filing their taxes, let taxpayers tick a box saying “I have done my best to make India clean”. Of course, a lot of people will claim the tax exemption without changing their behaviour, but a some will. It is better to trust the citizens more to do the right thing, than to tax them more on the premise that they will do the wrong thing. That’s the only way Swachch Bharat can work–when the relationship between the citizen and the country changes into one of mutual trust and mutual concern. The campaign is about capturing hearts and minds, not more rupees.

The Modi government would do well to resist the temptation to use age-old sarkari methods to solve a nagging social problem.

On freedom of religion

The only restrictions to propagation of faith are force and fraud.

The last few months have seen the return of religion-related issues into the public discourse. While many of these issues have existed on the agenda of religious-political organisations for decades, their contemporary emergence might has been triggered by electoral calculations and a new public mood for them. It is understandable that many—including, at times, this blogger—have been exasperated by their acquiring centre-stage at a time when India’s growth priorities lie elsewhere.

However, the emergence of contentious issues relating to the place of religion is also an opportunity for another generation to re-examine the balance the Indian Republic has struck on those very issues, and hopefully, allow us to get past them and onto the more important items on the public agenda.

The rather clear constitutional position—laid out in Article 25 of the Constitution and elsewhere—was muddied by a confused 1977 Supreme Court judgement (Stanislaus v State of Madhya Pradesh) where a bench headed by Chief Justice A N Ray drew a specious distinction between a fundamental right to propagate (that he ruled is constitutional) against a ‘right to convert’ (that he ruled does not exist). He arrived at this conclusion because he reasoned that one’s right to convert violates another’s freedom of conscience, and therefore is untenable.

In his monumental three-volume Constitutional Law of India, H M Seervai argues that the “Supreme Court’s judgement is clearly wrong, is productive of the greatest public mischief and ought to be overruled.” Seervai’s contends that conversion due to force or fraud is clearly unconstitutional because “if A converts B by force or fraud, B is deprived of his freedom of religion and freedom of conscience.” So the only question relates to the constitutionality of conversion by persuasion. Chief Justice Ray, Seervai argues, “mistakenly believed that if A deliberately set out to convert B by propagating A’s religion, that would impinge on B’s “freedom of conscience”. But…the precise opposite is true: A’s propagation of his religion with a view to its being accepted by B, gives an opportunity for B to exercise his free choice of a religion.”

Seervai’s arguments were consistent with the intentions of the Constituent Assembly. He quotes K M Munshi’s speech on the background of Article 25(1) in the Assembly. Munshi states: “So long as religion is religion, conversion by free exercise of the conscience has to be recognised. The word ‘propagate’ in this clause is nothing very much out of the way as some people think, nor is it fraught with dangerous consequences.”

Unfortunately, until a bigger bench of the Supreme Court revisits the 1977 judgement, we have to live with the ‘public mischief’ it has encouraged. There is no doubt that the framers of the Constitution intended to permit conversions as long as there was no force or fraud involved.

That indeed is the liberal position. In The Acorn‘s opinion, inducements and allurements cannot be distinguished from other forms of persuasion. A person ought to be—and is in India—free to convert to any faith for any reason, including financial ones. There is no reason why a citizen cannot sell her soul to the highest bidder, and no reason why she cannot repeat this auction every day. May the highest bidders win, day after day! (As an aside, it is likely that the reservation price for a soul will rise in tandem with per capita GDP.)

In a discussion some weeks ago, a thoughtful colleague noted that while this may be all right in case of individual conversions, large scale conversions change demographics and can be detrimental to national security and the very values in the Constitution that enable such conversions. This is a fair and valid point. Even so, like all other liberties, freedom of religion must be safeguarded without taking it away.

Amid all the heat and noise of partisanship and prejudice, the public discourse does not frame the question properly. The question is what is the proper the role of the state and the government in matters of conversion? The correct answer is that it has—or ought to have—no role, other than to prevent force and fraud, and punish those who engage in them.

Individuals and religious organisations have—and ought to have—the right to persuade people into converting to their faith. The Vishwa Hindu Parishad and other Hindu organisations should be free to organise “ghar wapsis“, “shuddhis“, re-conversions and indeed fresh conversions, individually or in their thousands, by persuasion, inducement or allurement. Not by force or fraud. The Church should be free to convert people, individually or in their thousands, by persuasion, inducement or allurement. Not by force or fraud. Muslims should be free to convert people, individually or in their thousands, by persuasion, inducement or allurement. Not by force or fraud. So too everyone else.

The government must remain agnostic (pun unintended) while people should be free to choose from the options available. As Seervai says, it is the existence and ability to exercise choice, that makes their freedom of conscience a reality.

None of this is the government’s business. To the extent that ghar wapsis and other conversions do not have implicit or explicit support of the state, use or connivance of the government machinery or wilful negligence to prevent force and fraud, there cannot be any objection to them.

Far from getting worked up over the VHP’s ghar wapsi campaign, the focus of the public discourse ought to be to examine the concerned government’s role. There have been cases, as in Y S Rajasekhar Reddy’s administration in Andhra Pradesh, where state government machinery was used to support and abet conversions. This is clearly wrong. If Christian missionaries conduct similar conversions without the government’s support (or opposition) then they are within their rights to do so. Those who think this is a problem can organise themselves and use persuasion to prevent and indeed, re-convert people that the missionaries have converted. They too are within their rights to do so.

Some have proposed a new law to ban all conversions. Such a law is not only deeply illiberal but positively untenable under the Constitution. If today all sorts of laws—from those proscribing conversions to those requiring changes of faith to be approved by government office—are in force, it is in no small measure due to the judiciary’s failure to interpret Article 25 as in its letter and spirit. We will have to await a more enlightened Supreme Court bench to reset the constitutional position to one where the 1977 judgement is overruled.

In the meantime, there is no doubt that persuasion is the only instrument any religious organisation can use to propagate its faith and win converts.

The liberal nationalist position on free speech

The problem is not so much the liberals, but a mass of the population which gives in to populist sentiments.

The weapon of the weak

Sowmya Rajaram of Bangalore Mirror interviewed me for her feature article on Sunday. Here is the complete exchange:

1. What, according to you, is freedom of expression (FoE)?

The idea of free speech & expression is to say (write, draw, sing, compose musically etc) what one feels without being deterred by government, politicians, social consensus or popular sentiments. The only exception is the “harm principle” where there is incitement to violence.

Of course some free speech can be defamatory, and those defamed can seek legal recourse for the damage caused to them. But there cannot be any prior restraints on free speech.

2. There are a few matters to consider when talking about FoE– one of them being that it isn’t equal for everyone. Often FoE is different when you’re a disadvantaged minority, and an ideal for the privileged majority. In the case of Charlie Hebdo, for instance, the publications’s cartoons were often violent and deliberately provocative (even distasteful) in a country which did have a troubled relationship with its Muslim minority. So how does one negotiate that?

This is a specious argument — on the contrary, free speech is more meaningful for those who are in a minority, for their voices to be heard. It is more meaningful for those who are weaker, powerless, poor or disadvantaged. Only free speech allows the disadvantaged asymmetric power.

3. You have in the past said that censorship is tied up with issues of intolerance and competitive politics. That may be true, but isn’t censorship necessary in a large, diverse and often fractious state like ours? How does one balance the need for individual FoE with a collective responsibility to peace and freedom?

In ordinary circumstances, there is no case for censorship of any kind. Films could perhaps be classified so that children are protected from adult themes and audiences can know before-hand which films they might want to avoid. You only have to see our films to see how distorted censorship outcomes are: you have films with the most misogynistic themes, celebrating barbaric behaviour, all allowed without cuts. But kissing and nudity are censored!

The only point where censorship is justified is in emergencies — where there is a risk that information flows can impact national security, set off large-scale violence, rioting, stampedes etc.

Censorship to protect the sensitivities of adults is ridiculous, patronising and makes a mockery of our democracy where adults are considered sensible enough to vote, marry and produce children, but not sensible enough to watch a movie or read a book!

These questions turn up repeatedly because we have arrived at some kind of a consensus that something that is offensive ought to be banned. The contemporary roots of this arose with Salman Rushdie’s Satanic Verses, which the Rajiv Gandhi government banned. India was the first country to ban the book! That opened the floodgates for everyone to claim to be offended and get the offending movie or book banned. Since India has hundreds of communities, it is normal for each of them to want to claim the same ‘privilege’ as others.

Showing thin-skinnedness is also a useful political tactic, as it allows a group to demonstrate their political strength.

Individuals identify with one or more communities, and are understandably more vocal in claiming their own ‘privileges’ than in defending others’ rights. So people will engage in whataboutery and yesbuttery. We can’t blame the people, because they are responding to the incentives our public environment has created.

The way out is simply to adhere to the view that nobody’s sensitivities are worthy of protection. I think many of the films, lyrics and songs are in very poor taste, and hence I avoid them. People have the right to change the channel! If people don’t turn up to watch Honey Singh’s shows, I’m sure he’ll change his tunes (or lyrics). People who are offended by Doniger, Rushdie or Socrates don’t have to read them.

4. Many of the ‘hate speech’ laws are a legacy of colonial times when it was deemed necessary to have them to control an essentially “esxcitable”, diverese race. How are these relevant today?

Yes, hate speech laws in the West derive from their colonial excesses, racism, slavery, and of course, the great crimes during the Second World War. We did not have these in India. Our problem is communal, caste and ethnic conflict which is not quite the same thing.

We need not control hate speech. But there is a case to punish incitement to violence based on hatred (or for that matter, any other reason).

5. How much merit is there to the movement for a complete libertarian state where speech is truly free? Is it even possible?

There cannot be a complete libertarian state, as that is an oxymoron. A state involves a social contract where some liberties are traded away for the privilege of enjoying the rest of them. So we give up the right to violence to the state, so that we may enjoy the right to life, property, free speech and so on.

A figure of merit, therefore, is how few of our liberties do we need to give up in order to enjoy the rest. North Koreans give up 90% of their liberties to enjoy the remaining 10%. North Americans give up 10% of their liberties to enjoy the 90%. I think India should aim to move towards the North American standard, rather than the North Korean standard.

6. FoE also becomes problematic when one weighs the consequences of utterances differently. For instance, liberals were up in arms about the ban on Wendy Doniger’s book, in the case of Charlie Hebdo and earlier, when Arundhati Roy was charged with sedition and jailed. But the very same people were also outraged when Honey Singh was to perform in India in the aftermath of the Delhi gangrape in 2012, given his offensive, provocative lyrics that were derogatory to women. Could you talk a little bit about the conflict there?

Again this is a specious generalisation. I’m sure there were liberals who defended the rights of both. The problem is not so much the liberals, but a mass of the population which gives in to populist sentiments. So we’ll have people claiming “Je suis Charlie Hebdo” because it is popular, we’ll have people supporting the ban on pornography, because that is the right thing to be seen saying, and we’ll have people asking Honey Singh to be banned.

The masses have no obligation to be logically consistent, or principled. We, the people, are selective in our morality and our principles. That’s our problem.

7. It is a problematic subject with no easy answers — but is FoE a myth? Does it exist? What kind of approach can one take to the concept?

Of course it is real and it exists. The very fact that we are debating the limits of our free speech is a statement to its existence, its importance and its acceptance in our society. Our only problem is that we want it to be self-serving!

Why neighbours, family members, boyfriends & husbands must be banned

To prevent rape

A driver affiliated to Uber, an innovative taxi service, is accused of raping a passenger in New Delhi. The driver has been apprehended, and has been found to have a previous conviction of rape. To ensure such incidents do not recur, the Delhi government has banned Uber.

The Delhi government must go further. It should not stop at Uber. It should ban all fleet taxi operators including Meru, Megacabs and so on. Why stop there? Who checks the criminal records of all the black-and-yellow taxis that operate in the city? They should be banned too. A number of tourist taxi permit holders also run taxi services. Since we do not know if their drivers are checked for criminal records, and are all potential rapists, they too should be banned.

Auto rickshaws must be banned too. For similar reasons. Bus, Metro and train drivers should be caged into their driving compartments every morning and released only when their shifts are completed. The keys of the compartment must be deposited with the local police station.

Even this won’t solve the problem. Data released by the Delhi Police show that only 4% of the arrested rapists were strangers (like taxi drivers) and 96% were persons known to the victim or her family.

The Delhi government needs to go after the 96%. Helpfully, Rukmini S’s analysis in The Hindu tells the Delhi authorities just what to do. Almost one-third of the rape cases heard in court involved consenting couples, where the plaintiff’s parents accused the male in court. The Delhi government should ban relationships between adult men and adult women. Boyfriends should be banned. Husbands should be banned too to ensure the problem of marital rape is solved.

The study shows a large number of cases involved neighbours or acquaintances, as well as members of the woman’s immediate family. The Delhi government should ban neighbours, acquaintances and members of immediate family too. After all, few check the criminal records of these people.

The Delhi government should set an example. It must be seen to be doing something strong to protect women. Delhi’s example should be emulated by authorities in other cities.

No bamboo reeds. No flute.

Afterthought: Policemen, soldiers and paramilitary service personnel have also been accused and convicted of rape. Priests, religious leaders and godmen too. We should ban…

Warning: This post is an example of a literary style called satire. It employs sarcasm. It should not be taken literally. This warning has been issued in the public interest when real life and satire are sometimes indistinguishable.

Update:The Union government is considering banning Uber across India.

Checking judicial populism & policymaking

Judges should not make policy

All manner of players moved into the space created by a combination of the extreme weakness of the Executive and the logjam of the Legislative over the past decade. In stepped ‘civil society activists’, large non-governmental organisations and the judiciary. Of these only the last has constitutional legitimacy and therefore, judicial actions deserve a lot more scrutiny by those who wish to safeguard the Indian republic.

Let’s set corruption and other malpractices aside for now. What should concern the republic is the role the judiciary sees for itself. Instead of concerning itself with its core functions: adjudicating on civil, criminal and constitutional matters, it has entered domains and taken positions that risk further damaging both constitutional balance and good policymaking.

This is about propriety of process, not merits of the outcome. For instance, it made little sense for the Supreme Court to rule that radio spectrum should always be auctioned. Sure, auctions are one of the best ways to allocate scarce national resources, but the absoluteness of a Supreme Court verdict makes it impossible for the government to say, promote innovation in the wireless industry through a different scheme of spectrum allocation. This is just an example: public policies are best made by the Executive because of the need for flexibility and discretion. When policies arise out of Supreme Court judgements, they do so at the cost of undermining democracy, federalism and quite often, common sense.

Yesterday, the Supreme Court announced that it will set up a “Social Justice” bench, for:

To mention summarily, about the release of food grains lying in stocks for the use of people living in drought affected areas; to take steps to prevent untimely death of women and children for want of nutritious food; providing hygienic mid – day meal besides issues relating to children; to provide night shelter to destitute and homeless; to provide medical facilities to all citizens irrespective of their economic conditions; to provide hygienic drinking water; to provide safety and secured living conditions for the fair gender who are forced into prostitution etc. are some of the areas where Constitutional mechanism has to play a proactive role in order to meet the goals of the Constitution. [Quoted from Bar and Bench]

This move is problematic along several dimensions. First, it is yet another “fast track court” among many fast track courts. Fast track courts sound good, but work well when there are very few of them, and used very sparingly. A lot of permanent fast track courts slow down the entire system (and according to Supreme Court’s latest figures, it has around 65,000 pending cases.)

Second, by shunting public interest litigations (PIL) onto this social justice bench, it is presuming the PILs only ought to be about social justice. Surely citizens of India must be allowed to file PILs about other important public matters, which may not concern social justice.

Third, the mandate of the special bench is a massive intrusion into policymaking and sets a particular social agenda in concrete. Even the founding fathers of the Indian Constitution were unwilling to do this, for they rightly felt that every generation must have the freedom to solve social problems in the light of their own wisdom and experience. The argument that the Preamble of the Constitution calls for social justice doesn’t wash: the preamble applies to the whole purpose of the republic, not a specific task for the Supreme Court. Moreover, going by the Court’s logic, will it now also create benches for economic justice, political justice, liberty, equality and fraternity as well, as they are all cited in the Preamble? If not, why single out social justice?

From recent comments and the announcement of this social justice bench, it appears that the Court is concerned that the Modi government is likely to reverse the social justice policies introduced by the UPA governments. Even if this impression is accurate, it is not for the Supreme Court to protect specific ideological persuasions, either its own, or of previous governments. In a famous case on Barack Obama’s healthcare policy, the US Supreme Court noted

Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.[Reason]

That is a fine principle for the Supreme Court of India too.

The judiciary will fulfil its constitutional role if it performs its core functions well. This means dispensing justice, not hardcoding policy, and certainly not acting in ways that “satisfy the desire of society”. The best way to ensure justice—social, political and economic—is for it to speed up the judicial system. For all the Supreme Court’s exertions, there seems to be little by way of fixing this central problem. The Court should detail how it intends to become more efficient and effective, and demand the same of the Executive and Legislature.

NRI voting should not be made too easy

How to raise political engagement without raising moral hazards

The connectedness of the Information Age made the issue of political rights of expatriate citizens more salient. The question of “should Non-Resident Indians get the right to vote?” was the topic of endless university canteen discussions, Usenet flame wars and online discussion forums before the Representation of People (Amendment) Bill, 2010 was passed to allow Non-Resident Indians to come back and vote in their constituencies. Many NRIs came back to vote in the May 2014 elections, and many others worked in the campaigns.

There are demands for more—that NRIs should be allowed an absentee ballot, to vote from their foreign domicile. This is sometimes coupled with the demand for internet-voting, a feature request that is common to both resident and non-resident Indians. While both these demands enjoy a certain degree of popularity, few have taken a hard look at the implications of doing so.

NRIs are citizens of India, many of who have retained their citizenship despite the lure and the attraction of a foreign passport. They have ideas, knowledge, skills, perspectives, capital and human resources that add to the quality of India’s politics, policy and industry. Leaving them out of the political process is unfair and wasteful. They must have a political voice.

The Election Commission has cited logistical challenges as the reason for not setting up polling booths in foreign countries. However, the real problem is more than just logistics. Absentee ballots have a moral hazard: the absentee voter is not around in the constituency to directly benefit from or suffer the consequences of his political decision. This insulation from the direct effects of one’s own voting decision weakens both the representativeness and accountability of the democratic process. The NRI has insurance too: if he does not like the outcomes in India, he can choose to continue foreign residency or take foreign citizenship. Of course, resident Indians can emigrate too, but it’s a lot more difficult.

Empirically, Diaspora politics tends to focus on the emotional and the ideological, and is often hardline and uncompromising. [Devesh Kapur’s latest paper on the political effects of international migration puts this in perspective]. The resident population has a greater need to balance the emotional with the quotidian and the ideological with the practical, so it makes a lot of pragmatic compromises.

The 2010 amendment to election rules balances, to a certain extent, the electoral inclusion of NRIs and managing the moral hazard arising from it. In economic terms, only those NRIs whose expected value of the benefit of voting exceeds the cost of a return trip to their polling booth will vote. The height of this hurdle protects the resident electorate from the political choices of their expatriate compatriots. It also means that richer NRIs are more capable of crossing this hurdle, and therefore, more likely to affect electoral outcomes in India. This is a price that must be paid to address the moral hazard of allowing NRIs to vote.

Allowing NRIs to vote in Indian embassies and consulates abroad lowers the hurdle. Internet voting reduces the hurdle almost to zero. The moral hazard problem gets worse with overseas polling stations and very acute with internet voting. Therefore, given the nature of dynamic compromises that characterise the politics of a highly diverse, plural India, it is prudent not to consciously stir up the pot by reducing the economic cost of voting.

That’s why internet voting, even for resident voters, is a bad idea. The inconvenience of standing in a queue for the time that it takes to cast a vote ensures that only those who value their vote more than that will turn up to do so. Yes, this system disproportionately favours those who put a low value on their time (in other words, those with lower incomes), but it is fair in that there is nothing to prevent anyone who values the subjective political outcome more than his subjective cost of voting to turn up and vote.

Another problem with absentee ballots is the question of constituency. Which constituency should an Indian citizen who’s lived in New York for 10 years belong to? She might have friends and relatives in one constituency—but putting her on the voters list of that constituency is against the principle of domicile-based voting. Many resident Indians live in one constituency but have family links in other constituencies, but they get on the electoral rolls of the constituency they are resident in. (Some resident voters do prefer to vote in their native constituencies, which the electoral system currently ignores.) Domicile-based electoral rolls are important for representation and accountability, and our New York-based voter might not know (or care) how bad public services are in her Indian native town are for her to hold the elected representative accountable.

Current electoral rules do not address the constituency question. One way would be to create a NRI constituency in the Rajya Sabha and the upper houses of state legislatures, and allow all NRIs to pick a representative who will voice their interests. We might need several NRI seats because different NRI populations have different needs. For a half-serious take on what might result, see why the sun does’t set on the Indian Republic.

It is important that all Indian citizens are included in India’s political system. After the 2010 amendment, a better balance has been struck. Further easing of the rules of voting is not advisable. Hurdles that impose economic costs on voters are not a bad thing—voting should not be made cheap.