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 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!

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.

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.

On NDTV: On the draconian cyber law

The draconian Information Technology Rules have created an environment that threatens our freedom

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 otherwiseunlawful 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. [Nitin Pai/DNA]

Populism, freedom and democracy

Defending free speech is best done by voting

The Indian governments’ second cave-in over Salman Rushdie at Jaipur last week should worry us. The Rajiv Gandhi government’s surrender to Muslim ‘sentiment’ over Satanic Verses triggered the process of competitive intolerance that has created an environment where anyone—citing religious feelings—can have books, movies and art banned, and their creators persecuted. A quarter of a century is usually sufficient to reflect on the follies of the past, realise the consequences of the mistakes made and resolve not to repeat them. The UPA government could have managed Salman Rushdie’s appearance at the Jaipur Literary Festival better. Here was an opportunity to not only reverse the tide of competitive intolerance but also secure an unassailable position in the political landscape.

Yet, the Congress regime failed. And failed abjectly. All it could do was to use low cunning to create fear and uncertainty among the participants. Those who believe that the first duty of the government is to protect citizens from violence will conclude that the UPA government in New Delhi and the Congress government in Jaipur have failed. After all, if we are to allow violent people to determine what a citizen can or cannot do, why do we need government in the first place?

“But it’s about UP elections!” comes the reply, as if fundamental rights are subject to the political exigencies of state assembly elections. While it is understandable that political partisans—who see everything through the lens of costs and benefits to the party they support—will offer this as an explanation, excuse and justification rolled into one, there is no reason for the rest of the citizenry to accept this as the ‘logic’.

“But under the Indian Constitution, fundamental rights are not absolute and the government has the right to place reasonable restrictions on them” comes another reply. This is an accurate statement. From the debates in the Constituent Assembly, to the verdicts of the Supreme Court and to the opinion of experts in constitutional law, there is no doubt that the Indian Republic seeks a balance between individual liberty and public order. Ergo, some actions by the government to abridge liberty in the interests of maintaining order are constitutionally legitimate. This is intended to give the government flexibility. It would be ridiculous to argue that the Constitution is so constructed to cause the government to yield to threats of violence. It would be wrong to blame the Constitution for a particular government’s cravenness or failure.

What then should we make of this affair? As Andre Beteille explains in his masterful essay on constitutional morality, the Indian system is prone to swings between constitutionalism and populism, with the former asserting liberty and the latter assailing it. Why, though, should populism be opposed to individual liberty?

Phrased differently, why should the government cave in to the demands of the intolerant and not to demands of the liberal? Actually, this is the same as asking “why is it unsafe for women to walk on our streets, why is it that our courts take too long to decide cases, why is it that we need a scores of licenses to start a business, why is it that it is so difficult for our children to get a seat in a good school, why is it that we don’t have decent drinking water, electricity supply, hospitals and, and, and …?” Given the public awareness and indeed consensus that these issues need to be tackled, why is the government so uninterested in pursuing these goals with any seriousness?

The answer might surprise you. It’s because India’s democracy is functioning as it should and the politicians are sensitive to the demands of their voters. The electorate is getting what it wants. The population isn’t. Public discourse in India is unduly influenced by the middle class, not least because it constitutes the market for our media. Middle India believes that that issues that it is preoccupied with should also concern political parties and the government. And when it observes that this isn’t quite what is happening, it is disappointed and—like a hopeless romantic who hits the bottle—drowns its sorrows in cynicism.

Democracy is a numbers game. Those with larger numbers can use the flexibility in the Indian Constitution to have their way to a larger extent. Now we can wish that we had a less flexible constitution where this wouldn’t be possible. But not all wishes have their Santa Clauses. Or, we could start practising democracy. Explaining the failure of the old Indian Liberal Party (in 1943!) B R Ambedkar drew attention to what he called “the elementary fact”, that “organization is essential for the accomplishment of any purpose and particularly in politics, where the harnessing of so many divergent elements in a working unity is so great.”

Technology has made organisation of large numbers of like-purposed people fairly easy. As Atanu Dey has argued, forming voluntary voter’s associations can make an individual voter more effective. It’s being put into action too—see the United Voters of India online platform.

Ultimately, though, it depends on how much of the population becomes the effective electorate. In other words, it depends on whether you vote or not. If you don’t, why blame political parties or the government for giving voters what they want?

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.

Territory is not a big deal

People are.

From a liberal nationalist perspective, it is impossible to agree with Jaswant Singh’s judgement that territorial integrity of pre-Partition India was worth preserving at the cost of having “Pakistans within India”. His praise for Mohammed Ali Jinnah and his criticism of Jawaharlal Nehru and Sardar Vallabhbhai Patel is based on this notion. Yet a constitutional arrangement where citizens come in different types based on their religion and where different types of citizens have different rights and entitlements might not even preserve the territorial unity it set out to preserve. It would be impossible for such a state to achieve stability in its domestic politics and consequently, it would be impossible for such a state to operate with the unity of purpose necessary to protect its geopolitical interests. Indeed, it would be difficult to pin down a definition of its interests in the first place.

Territorial unity is meaningless unless it defines a state that realises individual rights and freedoms—the foremost among them being equality. Nehru might have had his faults—but his uncompromising stand on a liberal democratic constitutional structure was not one of them. If anything, his fault was that his liberalism didn’t go far enough to respect fundamental rights when they got in the way of his social reform project. [For a more detailed response to Mr Singh’s contentions, see GreatBong’s post]

Should this warrant Mr Singh’s summary expulsion from the BJP? Well, that’s the BJP’s call. It is entirely within its rights to take action against a member who it sees has having strayed from its values. Of course, you would expect the biggest opposition party in the world’s biggest democracy to do this with due process, decorum and dignity. That it didn’t speaks of the type of office-bearers it has. It also begs the question of the kind of values the BJP has when you consider that it stood behind a thug who spewed communal venom but thought it fit to expel an urbane statesman who expressed a heterodox intellectual opinion. If the BJP’s leaders wish to face the electorate with such a prospectus, then it is entirely their call. [See Rohit Pradhan & B Raman on this]

But nothing justifies the Gujarat state government’s decision to ban the book. That it is silly and impractical should not subtract from the fact that it is an assault on the freedom of expression. Under Narendra Modi, Gujarat has been among India’s better governed states. Even so, it is presumptuous for Mr Modi to impose his likes, dislikes and political compulsions on the the aesthetic and intellectual life of Gujarat’s residents.

Unlike Mr Singh’s expulsion, the Gujarat government’s ban is not an internal matter of the BJP. It must be challenged in court. If the ban is symbolic, its revocation will be more than that. It will set a precedent.

Finally, let’s be clear—as The Acorn wrote in 2005, Jinnah doesn’t matter (and there’s some empirical evidence too). The debate over Jinnah’s legacy is taking place on the wrong side of the border he created. For India, the question of whether or not he was a secularist is pointless—Pakistan is an Islamic republic. Besides, Jinnah’s fear of majoritarian rule was hardly based on principle—if it were, his Pakistan wouldn’t deny its own minorities the protection against majoritarianism that he sought in pre-Partition India.

Unsurprisingly, it is in India that fundamental rights—equality of all citizens the first among them—provide a bulwark against majoritarianism. This hardly means that the situation is perfect. Rather, it tells you how important it is to be intolerant to any attempt to erode, abridge or subvert those rights for reasons of low politics or high policy.

That’s why those who disagree with the argument in Mr Singh’s book must oppose any attempt to ban it.

On psywar and sedition

And demonstrating resolve

Twenty prominent personalities have written an op-ed arguing that India cannot afford to fall victim to a psywar (linkthanks Yazad Jal).

Some stray voices in the media have been questioning, with surprising nonchalance and lack of depth, the wisdom and expediency of retaining Kashmir as a part of India. This matters not because such voices reflect any growing view in our country but because they play into the hands of enemies of the nation. Their suggestions embolden subversive forces both within and outside the country, and encourage our adversaries to entertain the hope that with a little more effort, Kashmir will secede from India.

National will is a critical component of state power. In the absence of military might, psychological warfare is the weapon of choice of a devious adversary to attempt to break national will, and to also confuse and demoralise the Indian state. No nation aspiring to become a major player in global power dynamics can afford to fall victim to such psywar.

India cannot and must not give any signal that could be misinterpreted to mean that its national resolve to preserve its unity and integrity is crumbling. [ExpressBuzz]

They end their piece calling for the Indian government, political parties and people to unequivocally signal a commitment to India’s territorial integrity.

They are right to point out the effect that a perceived weakening of Indian resolve will have in the minds of Kashmiri separatists and Pakistani strategists. As Praveen Swami’s excellent India, Pakistan and the Secret Jihad describes all too clearly, India ends up suffering for the errors of judgement made by deluded Pakistani strategists who are keen to jump at the smallest sign of weakness on India’s part.

While they rightly criticise the media for giving way too much prominence to the “let Kashmir go” perspective, they could well have made these points without criticising the freedom of expression or describing views to the contrary as “seditious”. Actually winning the public debate by prevailing over pro-secessionists (and not by merely shutting them out) can send an even stronger signal to secessionists and deluded Pakistani strategists.