freedom – The Acorn

Three thoughts on Independence Day

A beacon of liberal nationalism

We are like a lighthouse, a beacon of liberal nationalism. Freedoms are enshrined in the Constitution, but will be lost unless protected. We stand strongly for freedom of an individual along with economic freedom and belief in diversity.

We believe freedom should reflect in the way you do things, not just in the outcome. When you talk to people about nationalism, they often speak of borders, or integrity. As if national interest is a real estate game. Whereas, in a liberal democracy, the individual is the ultimate cause. In one of our earliest editorials for Pragati – The National Interest Review, we said, “We are a land of 1.2 billion minorities,” that is, every individual is like a minority.

Natan Sharansky, the Russian politician and human rights activist, once said, “Can someone within that society walk into the town square and say what they want without fear of being punished for his or her views? If so, then that society is a free society. If not, it is a fear society.” We believe if we can go to a town square and simply announce what we want to eat, wear, read and nobody attacks us for it, then we are a free society.

Freedom is not necessarily going against the state, it is also about staying protected from communities and civil society. The Republic of India is the best way to achieve it and one that can protect the rights of the maximum number of people.

(Recorded by Suchi Bansal for India Today’s special Independence Day issue)

The Three Thoughts Archive:
It is a tradition on this blog to use Independence and Republic Days as opportunities for contemplation, reflection and introspection.

Three thoughts on

On Independence Day 2015, 2014, 2013, 2012, 2011, 2010, 2009, 2008, 2007, 2006, 2005, 2004;

On Republic Day 2016, 2015, 2014, 2013, 2012, 2011, 2010, 2009, 2008, 2007, 2006, 2005

Three thoughts on Independence Day

On freedom, constitutional balance & the dangers of majoritarianism

For quiet contemplation on Independence Day

— A good time to read and reflect on Tagore’s verse

Where the mind is without fear and the head is held high
Where knowledge is free
Where the world has not been broken up into fragments
By narrow domestic walls
Where words come out from the depth of truth
Where tireless striving stretches its arms towards perfection
Where the clear stream of reason has not lost its way
Into the dreary desert sand of dead habit
Where the mind is led forward by thee
Into ever-widening thought and action
Into that heaven of freedom, my Father, let my country awake.

— On freedom of religion

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. [More]

— On protecting liberty from democracy

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. [More]

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The Three Thoughts Archive:
It is a tradition on this blog to use Independence and Republic Days as opportunities for contemplation, reflection and introspection.

Three thoughts on Independence Day 2014, 2013, 2012, 2011, 2010, 2009, 2008, 2007, 2006, 2005, 2004.

and on Republic Day 2015, 2014, 2013, 2012, 2011, 2010, 2009, 2008, 2007, 2006, 2005;

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 internet is freest in US hands

Internationalising internet governance will abridge liberty and restrict free speech

Edward Snowden’s revelations have strengthened demands for “extricating the internet from US control.” This is not a new phenomenon. Ever since Jon Postel died in 1998, governments and non-government organisations have been engaged in a long, complex and meandering process of somehow taking control over the internet. However, while outfits like ICANN and assorted United Nations forums have gotten into the act of “internet governance”, much of the internet remains in US hands. China might well be the country that has more internet users, but it has locked its citizens behind the Great Firewall and effectively created its own national intranet.

Mr Snowden’s revelations are grave, but shouldn’t surprise anyone familiar with national security issues or the communications infrastructure business. So while a lot of international reaction is properly in the Captain Renault (“I’m shocked, shocked to find that gambling is going on in here!”) category, there are some attempts by governments to secure greater control over internet. China, Russia and Brazil are expected to raise the pitch in the coming months.

It would be terrible thing if they succeed. Whatever the imperfections, whatever the US government’s transgressions, we are better off with as much of the internet coming under the US Constitution than the UN Charter.

Why so? Because there is no better political system—the constitution, separation of powers, civil society and citizens—than the United States today that can protect liberty and free speech. Start with Mr Snowden. Where is Russia’s Snowden? Where is China’s Snowden? Where is Brazil’s Snowden? The United States has strong and vocal free speech and privacy advocates who can hold their government accountable without fear of harm. It has a judicial system that is sufficiently independent as to overrule the executive if found violating the US constitution. Despite what cynics in the United States and detractors around the world say, the US system works. To the extent that it does, it protects everyone’s liberties (albeit to a lesser degree than it protects the liberties of US citizens).

For those who contend that this isn’t good enough, consider the alternative. The vast United Nations system that is accountable to exactly no one. The General Assembly has almost two hundred nation-states as members with varying degrees of commitment to upholding liberty. The Security Council reflects the balance of interests its permanent members, where such paragons of free speech as Russia and China have a veto. Let’s say that the UN creates a brand new UN Internet Governance Council to sit at the helm of internet governance. What is to prevent it from going the way of the UN Human Rights Council, where you don’t need any commitment to human rights to be a member, and where you can rule that free speech shouldn’t defame religion.

Now, those who argue that national governments must control the internet because they must exercise their sovereignty over their ‘territory’ of cyberspace have a logical argument when they call for the internationalisation of internet governance. However, it is unfathomable why proponents of free speech and liberty would want the world’s authoritarian regimes to have a say on how the internet is governed.

Calls for “extricating the internet from US control” are effectively facades for authoritarian states to further abridge the liberties of the world’s citizens. That is why they must be resisted. Indians are much better off putting their faith in their freedom-loving American counterparts than participating in grandiose international internet governance schemes.

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)

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.

On legalising prostitution

Social respectability shouldn’t get in the way of legality

Madhu Kishwar takes an eminently sensible comment by the Supreme Court—that the government ought to consider legalising prostitution—and engages in a tangential polemic on the social respectability of the oldest profession. “While there is need to decriminalise this activity and free sex workers from the terror and the extortionist grip of the police,” she writes “to make it respectable and socially acceptable would mean turning a blind eye to the dehumanising circumstances through which the vast majority of children and women are trapped into trading their bodies.”

The fundamental flaw in her argument is that the mere fact that an activity is legal doesn’t make that activity socially respectable. In fact, ‘social respectability’ is itself subjective—depending the time, place and people concerned. It is an unfortunate fact that in many places in twenty-first century India, working as a public sanitation professional is not considered socially respectable. Yet no one argues that sewage cleaning ought to be illegal. Governments might try, but they are largely powerless in trying to change the social mores.

Even while Ms Kishwar’s questions on legalising prostitution appear rhetorical, it is useful and educative to answer them—not least because they help conceptualise how the prostitution industry might be governed.

What does the term “legalise” actually imply?

It would imply that consensual trade in sexual services between adult citizens is permitted.

Does it mean that a prostitute can open a sexshop anywhere she likes and advertise her services? Does it mean men or women supplying call girls should be able to set up an office in any neighborhood they like, just as doctors set up their clinics, proclaiming that call girls are available between such and such hours?

No. Zoning laws have existed in India for a long time and prostitution can be subject to it. Merely because leather tanning is legal doesn’t mean you can open a tannery anywhere you like. So too for brothels. Just because selling cigarettes and beer is legal doesn’t mean you can put up beer and cigarette advertisements anywhere you please. So too for brothels.

How many of us are willing to let our young children grow up amidst an atmosphere where renting a woman’s body for sex is considered a perfectly legitimate activity?

It’s not as if our young children are growing in an atmosphere where they are oblivious to the realities of the world they live in. But should the need to retain the pretence of innocence of our children outweigh the benefits—from exploitation by the mafia and by the police—to the hundreds of thousands of people in the sex industry today? Is Ms Kishwar suggesting that it is okay to allow hundreds of thousands of women and men to be exploited by criminal gangs and corrupt policemen so that we can tell our children, in the relative comfort of our middle-class homes, that prostitution is morally wrong?

If people come to know that a mafia don has set up a call-girl racket in their neighbourhood, do they have the right to seek its removal or does it mean other citizens have to suffer the presence of such activities in the name of “respecting” the rights of sex workers to an occupation of their choice and thereby endanger their own lives?

One major advantage of legalising prostitution is that it will be less susceptible to be a mafia-run business, with all the criminal political economy that is associated with an underground business. But Ms Kishwar has a point—how does one balance the rights of the prostitutes against the rights of the community they live in. It is a political question—and ought to be decided by the same political processes that govern other decisions. Democratic politics is noisy, messy and imperfect. It is, however, a very good way to answer questions involving such trade-offs. (See an earlier post from Amsterdam)

Those who demand that sex work be given the same “respect” as any other profession, need to explain whose duty it is to give or ensure “respect” for prostitutes and pimps? Is the government expected to enact a law requiring people not to shun prostitutes, as for instance it did to ban the practice of untouchability? One can prove that one does not practice untouchability by freely intermixing and inter-dining with castes condemned as untouchables. How does one prove one’s “respect” for a prostitute?

Governments can’t force anyone to respect anyone else. But as discussed earlier, this is largely irrelevant to the issue of whether it makes sense to legalise the sex industry. Ms Kishwar appears to come out against legalising prostitution because she is against according it social respectability. She is entitled to her view on what ought to be socially respectable, but it would be sad if that subjective judgement should be allowed to get in the way of de-illegalising prostitution.

In fact, there is a great danger in a society where only the socially respectable is legal, for such a society has closed its doors to progress.

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.