Pouring supreme scorn on liberty

The Supreme Court must not hold in contempt what it is mandated to uphold

At first glance, today’s Supreme Court ruling making it mandatory for cinema halls to play the national anthem before screening movies, and requiring cinema-goers to stand up while it is being played, can be seen as yet another decision that appears more whimsical than grounded in Constitutional principle. Instead of refusing to waste its precious time hearing unimportant petitions from self-righteous busybodies who seek to impose their norms on the whole country, the Supreme Court has entertained many such, and created incentives for people to waste the Court’s time, and the citizens’ peace.

But a comment made by the Bench—perhaps revealing the rationale for the decision—should make us sit up and take notice:

When the national anthem is played it is imperative for everyone to show honour and respect. It would instill a sense of committed patriotism and nationalism…Time has come for people to realise that the national anthem is a symbol of constitutional patriotism…people must feel they live in a nation and this wallowing individually perceived notion of freedom must go…people must feel this is my country, my motherland. [LiveLaw emphasis added]

The Supreme Court just dissed individual liberty!

The bench sneered at one of the pillars of the Indian Constitution. Troubling as it is, more than the ruling itself we should be concerned that India’s highest judges think this way, and think nothing of expressing it this way. The Supreme Court is, after all, the ultimate guardian of individual liberty. It gets this responsibility from no less an authority than the Constitution of India. Citizens will be justified in wondering if the Supreme Court can discharge this assigned responsibility if it harbours such cynicism or disdain for individual liberty.

Legal scholars will no doubt cite scores of High Court and Supreme Court judgements that are unambiguous on the matter. Except when “individual liberty comes into conflict with an interest of the security of the State or public order”, individual liberty is supreme. It would be stretch to argue that people not standing up for the national anthem presents a scintilla of risk to the national interest. Indeed, India’s security or social order has suffered little damage from people not standing up for the national anthem in cinemas from 26th January 1950 till date. The judge’s words do not have a force of law, but to the extent they reveal thought processes, we have to worry.

It is bad enough for the Supreme Court to scorn individual freedom. To do so on an issue as unserious and arbitrary as what should be done at cinema halls is terrible.

Tailpiece:

Our emergency at the moment has perhaps led us toforget that if we do not give that scope to individual liberty, and give it the protection of the courts, we will create a tradition which will ultimately destroy even whatever little of personal liberty which exists in this country. [K M Munshi, Constituent Assembly, 6 December, 1948]

What lies to the right of centre in India?

The cohabitation of traditionalists and market liberals

Ever since India’s 2009 general election, it has become fashionable for many politically-minded people in the country to style themselves as being “right of centre”, “centre-right” and other terms where “right” and something else is joined together with a hyphen.

It is clear what people who label themselves thus are against — the Congress party, and especially the family that constitutes its apex leadership. Mostly, they oppose its “appeasement” of minorities, especially Muslims. They oppose its propensity to create “entitlements” in the form of reservations, quotas, subsidies and special treatment. They oppose the cronyism in the economy and political corruption in governance. They oppose its pusillanimity in foreign policy. There are many more, but these strike me as the big ones.

It is less clear what they stand for. Many of our self-styled right-of-centrists are strident opponents of liberalism. Many have deep misgivings, if not outright opposition to markets and free trade. The most coherent “right” in India is the Hindu right, which is clear about its commitment to Hindu nationalism, broad or narrow. However, even the Hindu right does not have an economic agenda that is consistent with its political ideology: should the Hindu nation rely on individual liberty and free markets, or should it construct a strong state that draws lines on individual freedom and controls the levers of economic power? During and after the 2014 election campaign, market liberals and social illiberals found themselves in the same “right of centre” camp, often having to pretend to be each other in order to fit in.

This ideological confusion and political tension within the segment that calls itself right-of-centre in India comes because our political context and historical development is different from that of the West, where the Right and Left first came into existence. I’ve written about this in my Niti-Mandala post, constructing India’s political spectrum. I was reminded of it last week as I read Jonah Goldberg’s statement of the Conservative position in the United States: which connects tradition and markets and forms the basic worldview of the American Right that the Republicans used to champion before Donald Trump, er, shook things up.

As a Chestertonian at heart, I like and respect old things. I like it when stuff beats the law of averages for reasons we cannot easily fathom. The Hayekian in me thinks old things that last often do so for good reasons we just don’t — and sometimes can’t — know. Unfortunately, we live in an age where we take the razor of reason to every little thing and strain to know the whys of it, as if knowing the why will empower the how. [National Review, emphasis added]

The same argument would be self-contradicting in India: where there are inhuman inequities embedded in caste discrimination and social practices. You can either defend the traditional Indian social order or individual liberty (and markets and so on). You can’t defend both, because the former is constructed without regard to, and often in suppression of the latter. This explains the confusion and tension among our “right of centre” compatriots, who are at best, — to turn a phrase from a best-selling novelist — Half Right. No pun intended.

They can either be traditionalists who seek to defend the old order from social revolution, and therefore come into tension with the Constitution that demands it. Or they can be liberals who pursue individual liberty and free markets, and thereby come into tension with everyone else who opposes either individualism or markets or both. They can’t be both.

Logical consistency apart, the practical question is to what extent can the two Half Right constituencies come together in politics. Is the tension between them bridgeable? Well, that’s hard to say, but the side with greater political clout will force the other into submission. Market liberals are not driving policy in the Modi government today.

The arrangement will hold to the extent that their dislike for the Left outweighs their dislike for each other. If the Congress party sheds its baggage — and that’s a big, big if — or another party takes up its Centrist space, it is likely that the the more liberal of the liberal Half Right will gravitate towards it. Until that time, the liberal Half Right will cohabit with the traditionalist Half Right, because most who seek the security of an ideological label are likely to lack the courage and commitment to stand apart, because that means standing alone.

On free speech and national security

Blocks, bans and censorship no longer work

This is the unedited draft of my guest column in this week’s India Today.

Let us not underestimate the importance and the challenge of maintaining public safety and national security in a diverse, heterogenous society undergoing rapid change. Over the last three decades, riding furiously on the politics of identity and the economics of entitlement, an arms race of competitive intolerance has rent Indian society. It is frequently accompanied by coercion, intimidation or violence.

Unfortunately, where one citizen’s intolerance collides with another’s right to free speech, the agents of the Indian republic cravenly side with the former. This is the context in which our police, intelligence agencies and security forces are tasked with the job of maintaining domestic peace. As important as their job is—for internal stability is the basis for growth and development—they are under-staffed, under-equipped, under-trained and inappropriately organised for the task. To an extent, therefore, it is understandable that the security establishment prefers to err on the side of caution, and seeks as much statutory leeway as possible in laws concerning free speech and civil liberties.

It is understandable, yes, but no longer acceptable. Even before large numbers of Indians acquired mobile phones and got onto the internet, our unreformed, colonial approach to policing had created a yawning gap of disaffection between police and citizen, establishment and society, the state and the individual. The information age has exacerbated this gap, creating extreme pressures on both sides. If left unchecked, such pressures could explode in many ways, most of which spell trouble for our democratic republic.

The traditional method of maintaining what is popularly known as “law and order” involves rationing information. It presumes that information is a scarce commodity like it used to be half-a-century ago. Censorship could prevent the masses from obtaining information that the authorities didn’t want them to. Books could be banned and their import restricted. Sensitive installations could be protected by preventing accurate maps from being published. Even when government documents weren’t classified, there was little chance that citizens would ever have access to them.

This is no longer tenable because information is no longer scarce. Traditional methods might still fetch tactical, short-term successes, but at the cost of creating strategic, long-term damage. Cutting off SMS services in Srinagar might put the brakes on the spread of a riot but adds another layer of grievance to an already disaffected population. In most cases it simply doesn’t work. Censorship can be circumvented inexpensively, banned books downloaded easily and many official documents accessed through the Right to Information.

That’s not all. By keeping blunt laws that were designed for ease of use by unreformed police forces, we do not create any incentives for smarter policing. Draconian laws are bad for the police. They are obviously bad for society. The disconnect they create between the two is bad for the Indian republic.

The recent arrest of the two young women in Palghar, Maharashtra under draconian provisions of the IT Act and the Indian Penal Code, and the subsequent government action against the policemen involved, demonstrates this. The only winners in that episode were the intolerant.

Instead of persisting with the increasingly counterproductive approach of rationing information, a better way would be for the government to manage its abundance. There is nothing stopping the government from putting timely, accurate information online. From traffic updates to weather, from law and order situations to authoritative updates on details of the operations of our security forces. When the Israel Defence Forces (IDF) published tweets and videos of their recent combat operation in near real-time, they ensured that their narrative prevailed over the usual confusion and misinformation that the fog-of-war creates. There are lessons here for our Home Affairs and Defence ministries.

Similarly, law enforcement authorities can keep their fingers on the zeitgeist and intervene with factual information in real time. Some are already doing this. The state police in Jammu & Kashmir have made good use of Facebook. Last month, the Ministry of Defence and Army Headquarters put out their version of the story even while Arvind Kejriwal was making allegations—concerning non-payment of emoluments to a NSG commando—at a press conference. This method can be used to good effect during times when there are malefactors spreading rumours online. Good information is the best way to counter bad information, obviating the need to block social media, ban websites and suspend telecom services.

Law enforcement authorities must have the powers to ensure public safety and order. However, the Policeman cannot be the arbiter of free speech. It is a mistake to ask police officers to develop the sophisticated sense to appreciate the finer nuances of what is acceptable speech. What we must do as part of a larger project of police reform is equip our law enforcement authorities with information management skills necessary to do their basic job—protecting our liberty—better.

Why protests are not constitutional methods

The right to protest peacefully is not in doubt. The wisdom is.

Longtime readers of this blog will know that The Acorn has been a relentless advocate of constitutional methods in conducting our public affairs. We never tire of citing Ambedkar’s Grammar of Anarchy speech (whose anniversary, incidentally, we celebrated yesterday). Ambedkar said:

“we must…hold fast to constitutional methods of achieving our social and economic objectives. It means we must abandon the bloody methods of revolution. It means that we must abandon the method of civil disobedience, non-cooperation and satyagraha. When there was no way left for constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods. But where constitutional methods are open, there can be no justification for these unconstitutional methods. These methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us. [More here]”

One of the most frequent reactions to criticism of protests and advocacy of constitutional means is “Do you mean to say protests are unconstitutional?” The question has been raised frequently enough so it is important to answer it.

Ambedkar calls these actions “unconstitutional methods“. He does not say that they are unconstitutional. There is a difference. No serious person will deny that Indians have a constitutional right to protest. Article 19(1) explicitly guarantees as fundamental rights the freedoms of speech, expression and peaceful assembly. The constitutionality of peaceful protests is therefore unquestionable.

The question, though, is not whether we have a right to protest or not. The mere exercise of liberty is neither an indication as to its wisdom nor to its efficacy. The question is therefore, about the wisdom and the efficacy of particular actions and their consistency with constitutional morality. This is the crux of Ambedkar’s argument.

For instance, praying to the Almighty is a constitutional act. Sleeping over it is a constitutional act. Protesting peacefully is a constitutional act. Civil disobedience is a special case of peaceful protest, for where it involves disobeying laws of the land, it is an illegal and unconstitutional act. None of these are constitutional methods.

What are constitutional methods? The full answer deserves a book-length treatment. In short, constitutional methods involve engaging the executive, legislature and the judiciary. Through representations to government officials, through persuading and working with legislators, through voting and through actions in court.

These methods are regularly used, do work and in fact deliver the most substantive changes. But there is a curious asymmetry in terms of their standing in the public discourse. While protests and ‘unconstitutional methods’ are romanticised and have a reflexive public appeal, their actual achievements fade in comparison to those achieved by constitutional methods. As Rohit Pradhan asked in an article in Pragati, what are the achievements of Jayaprakash Narayan’s “total revolution” of the mid-1970s? Violence fares even worse. No insurgency has succeeded. We await rigorous empirical evidence but it does appear that change through politics, parliament, legislatures and courts has a much better record on delivering lasting change.

However there is less glorification of these methods and diminishing awareness of what they are and how they can be exercised. This last must be addressed. (At Takshashila, we are attempting this. We have an ongoing policy research project on constitutional methods for civic action and are introducing a course on constitutionalism in our GCPP programme)

The genesis of a draconian section

Bad laws pave the way for worse ones

You only have to look at Section 66A of the Information Technology (IT) Act 2008 to realise that it is so badly worded that it not only permits draconian abuse by the government but allows individuals to get fellow citizens arrested for merely sending an electronic message that they consider grossly offensive. Don’t take this blogger’s word for it. Read it yourself.

It is obviously ultra vires of the Constitution’s Article 19, which enshrines freedom of speech as a fundamental right. If a statute renders “blasphemy” a crime in the Republic of India—as the IT Rules for Intermediaries, 2011, which draw their authority from the IT Act, have done—then it doesn’t take a legal genius to notice that a lot of things have gone ultra vires of the Constitution. The higher courts ought to strike it down when the matter comes up for hearing in a few public interest litigations that are in the works.

The question is how did this appalling section make it into the statutes in the first place? Here’s where it gets murky. By all accounts, the IT Act was sought to be amended in 2006, when Dayanidhi Maran was the IT minister. The concern at that time was over hacking and circulation of covertly-shot pornographic videos on mobile phones. An expert committee, of which Kiran Karnik, then the chairman of NASSCOMM was a member, recommended changes to the Act. In its Summary Report it said:

“Language of Section 66 related to computer related offences has been revised to be in lines with Section 43 related to penalty for damage to computer resource. These have been graded with the degree of severity of offence when done by any person, dishonestly or fraudulently without the permission of the owner. Sometimes because of lack of knowledge or for curiosity, new learners/Netizens unintentionally or without knowing that it is not correct to do so end up doing certain undesirable act on the Net. For a country like India where we are trying to enhance the positive use of Internet and working towards reducing the digital divide, it need to be ensured that new users do not get scared away because of publicity of computer related offences. Section 43 acts as a reassuring Section to a common Nitizen (sic). IT Act in order to ensure that it promotes the use of e-commerce, e-governance and other online uses has been cautious not to use the word cyber crime in the text.” [Expert Committee’s Summary Report at MCIT, doc]

This, however, does not sound like an explanation for the wording of Section 66A. That’s because it explains the Expert Committee’s draft of Section 66, which is very different from what eventually went into the amendment.

Somewhere between then and the report being tabled in the Lok Sabha for vote, during Andimuthu Raja’s controversial tenure IT minister, the wordings were changed. We do not at whose behest these changes were made. We do not know why. The Union Cabinet and the Ministry of Communications and IT are accountable, of course, but there is no transparency at all on the motives and the actors behind these changes. If there were national security reasons, they should at least have been mentioned as reasons. Without transparency, we will not be wrong in assuming that the draconian measures were intentionally introduced to stifle free speech and target political opponents of the parties in power. CIS India’s Pranesh Prakash has more on where they got the wording from in his detailed deconstruction of the offending section.

There’s worse.

Shouldn’t one of the hundreds of members of parliament noticed this section for its potential abuse, and flagged the issue? Shouldn’t the parties in Opposition, from the BJP to the Communists to the various regional parties, held the Government’s feet to the fire? After all, that’s what the parliament is for. How could this Bill make it past the two houses of Parliament, where there still are many individuals with the knowledge, inclination and position who could have intervened? Well, because it was passed in mindless haste at the fag end of the 2008 Winter Session of Parliament, when eight bills were passed in a mere seven minutes!

This happened because of the anti-defection laws introduced in the 1980s has turned Parliament from a debating chamber to a puppet theatre where the MP’s strings are pulled by the party leaderships. Bills are passed more through political deal-making between the party leaderships than through debate. It was not always like this. It changed because of one bad law. So bad is that law that it is hard to change it, because changing it requires the consent of the very party leaderships that it will disempower. Shanti Bhushan, now associated with India Against Corruption, was one of its drafters. It was enacted by the Rajiv Gandhi government.

This begs the question. How seriously can we take the laws made by a parliament that overlooked such a flagrant assault on our fundamental rights? The legitimacy of every single law, every single section made by this parliament is suspect. That does not mean citizens can disregard them. It means citizens ought to scan every bit of legislation going in and coming out of parliament with extreme diligence. This is where the work of neutral research bodies like PRS Legislative Research becomes extremely useful. It’s out there, for those willing to pay attention and act.

Parliament must redeem itself. If it wants to restore its credibility, parliamentarians should act in ways that corrects their big mistake. They must get rid of Section 66A in its entirety.

Related Link: See what Kiran Karnik says in on NDTV 24X7’s We The People show, where I was also a panelist.

On the government’s decision to block some social media content

On free speech and extraordinary circumstances

Here’s a segment from yesterday’s NDTV’s Nine ‘o Clock News

You can catch the entire programme here. For more details and an analysis of the blocked sites, see Pranesh Prakash’s post at CIS.

Three thoughts on Independence Day

We and our politics

For contemplation in Independence Day—V’s question, on a law that takes away our freedom and on the reality of our political spectrum.

The Three Thoughts Archive:
Three thoughts on Independence Day 2011, 2010, 2009, 2008, 2007, 2006, 2005, 2004;
and on Republic Day 2012, 2011, 2010, 2009, 2008, 2007, 2006, 2005.

Why the IT rules are bad. And how they can be reversed.

The IT rules are an unacceptable infringement of our freedom

The new IT rules put in place by the UPA government earlier this year have received far less public attention than they should. We covered them in this month’s issue of Pragati. One of the speakers at the recent Takshashila Shala described the damage they can do. In today’s DNA column I suggest how we, as ordinary citizens, can use constitutional methods to call for these rules to be reviewed. Write to your MP.

The following is the unedited draft of the piece published in DNA today.

So your daughter is finishing college soon. She’s waiting for entrance exam results and also applying for some jobs. Would you permit the guy who runs the neighbourhood internet browsing shop to know her name, address, phone number and keep her photograph? Would you be comfortable if he knows which websites she has been accessing? Probably not. Now prepared to be shocked. Under the new Rules under the Information Technology Act (IT rules), the Government of India requires cyber cafe operators to collect this information about your daughter. You’ll probably protect your daughter’s privacy by buying her a personal computer but what about the millions of fathers that can’t afford one?

But why does the government require your daughter to provide personal information to a stranger? National security, perhaps. After all terrorists have been using cyber cafes and unsecured Wi Fi connections to send manifestos (usually in bad English) and claim responsibility for attacks. So if cyber cafe operators collect the names and photographs of all their customers, the authorities will be able to quickly identify the terrorists the next time they send an email message. This is an excellent method to catch last year’s terrorists. Prospective terrorists are either unlikely to use cyber cafes because of these restrictions or if they do, provide false information.

The inability to use cyber cafes isn’t going to deter terrorists. It’s only going to cause them to use different tactics. Ordinary citizens however will suffer risks to their privacy. Cyber cafe owners will have yet another set of regulations to comply with. The unscrupulous among them might try to get around these rules through the well-known route of bribing the inspector. The inspector, who, among other matters has the authority to determine whether or not the partition between two cubicles is no more than 52 inches high, will have to avoid the temptation of looking the other way for a fee. If the Lok Pal comes in to effect, it might have to appoint an army of inspectors to investigate allegations against the army of cyber cafe inspectors that’ll will have to be appointed for the purpose of measuring the dimensions of cyber cafe partitions. The Lok Pal’s inspectors themselves, as we all know, will be extraordinary, incorruptible individuals, unlike cyber cafe inspectors.

And you ask why corruption is growing?

Maybe cyber cafes don’t concern you. What about free speech, which makes it possible for me to disparage the IT rules as being poorly considered? Under the new rules, users cannot post material online that is “grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner”. And who gets to decide what constitutes any of the above? No, not a magistrate or even a government officer. Anyone can send a notice to the owner of a website giving notice of a violation under any of the loose, subjective criteria. It then must be taken down within 36 hours.

Complain about bad service from an airline on your blog, and they can send a take down notice claiming it is defamatory, libellous or disparaging. In the hands of the easily outraged, aggressively hypersensitive and competitively intolerant sections of our population this will have the effect of further chilling freedom of expression. Moreover, the inclusion of the word blasphemy in that list makes you wonder which country we are in.

Actually, we don’t need these new rules to protect us from libel, paedophiles or incitement to violence. There are existing laws for that. A libel is a libel whether committed on paper or in ether. These rules, though, have the unacceptable consequence of stifling free speech. They weaken the ordinary citizen and put another coercive tool in the hands of the powerful and the intolerant. They must be reviewed.

Even though they came into force recently, they can be reversed. The government must place these rules before Parliament, which can amend these rules. All it takes is for one MP to demand a discussion. There is time but it is short..only until Budget Session 2012. Here’s what’s doable: write, call or visit your MPs. Write to the leaders of the political party you support. You’ll find their contact information at http://is.gd/loksabha and http://is.gd/rajyasabha. Explain to them that the IT rules are an unacceptable infringement of our freedom. Ask them to demand a discussion on the floor of Parliament. The government has exceeded the authority given it by Parliament and every MP should be concerned.

The rules can also be challenged in court, especially by persons who are directly affected by it. A well-drafted PIL in the Supreme Court is also possible.

The awakening of middle India this year can yet lead to better governance if we adhere to constitutional methods. It’s not going to be easy. Parliament is not what it once was. For years, it has not changed a single rule tabled by the government. But how hard is it to write to your MP? Your letter might make a difference.

© 2011 Diligent Media Corporation Ltd. Do not reproduce without permission.

Three thoughts on Independence Day

On socialism, constitutionalism and curbing intolerance

For contemplation on Independence Day—on the need to expunge socialism from the Constitution in letter and spirit; on the norms of public activism; and how competitive intolerance might be reined in.

Related Links: Three thoughts on Independence Day 2007, 2006, 2005, 2004 & on Republic Day 2008, 2007, 2006, 2005

Intolerance insurance

Markets in everything*

If the Indian government is failing to clamp down on competitive intolerance, the film and insurance industries have devised their own solution:

Politics and public sentiment, Bollywood has learned the hard way, can wind it at the box-office. With community protest increasingly becoming part of the noise accompanying a film release, the industry has decided to hedge its bets. And what better way than buying insurance cover. Most new Bollywood films are insured against everything from bans to terrorism, says producer Punkej Kharbanda, who made the controversial Matrubhoomi (A Nation without Women).

“…producers buy cover on an approximate and not actual budget,” says a trade insider. Apart from traditional cover for cast/key members, props and equipment, raw stock, negatives and extra expenses, a film producer is also protected if a movie is hit by adverse weather or if there is an illness in the family.

“Another attractive policy,” says leading Bollywood lawyer Shekhar Menon, “is the Multimedia Liability Insurance (Errors and Omissions) which protects directors from a quiver of legal claims, including those arising from defamation, libel or slander; copyright infringement (such as in the Raakesh Roshan-Ram Sampat Krazzy 4 spat or the Manoj Kumar-Shah Rukh Khan Om Shanti Om encounter); trademark infringement; invasion of privacy, plagiarism; emotion distress; negligence and even imprisonment.” [TOI]

There you go: the insurance markets may now help define the practical limits of freedom of expression.

* With due regards to Tyler Cowen who loves finding markets in everything