Tag Archives | liberty

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.

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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.

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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.

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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?

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By Invitation: Why human rights activists must be unreasonable

Because it is not for them to provide solutions

By Salil Tripathi

[Background: This is Salil’s response to the criticism that “human rights folks, at least in India, are terribly context insensitive. In practice, you can’t even talk about enjoying human rights (as opposed to possessing them) unless the state is capable of maintaining rule of law. By relentlessly criticising the government, and not having much else by means of a positive solution (beyond platitudes), human righters are hampering what capability that already exists. That’s contradictory. That they have for company, intellectuals who condone and incite political violence in the name of whatever cause, makes them all the more suspicious.”]

Human rights folks will be unreasonable, everywhere, to restrain the state. This is not to defend them, but to explain where they come from. The moment they become “solution providers” they have to begin modifying the message and make it more context-specific. Once they do that, the moral sharpness of their message—that the victim is most important (and they sometimes exalt victims to a holy status)—is lost. This is not to judge victims or human rights groups.

Whether it is ACLU or the Center for Constitutional Rights defending the indefendable folks in Guantanamo Bay cases, or Liberty supporting some committed Jihadists in Belmarsh jail in London, they see their role as defending the indefensible, so that the rest of us won’t get caught out. If they were to begin appearing reasonable, they’d lose resonance. More important, nobody will be speaking out for the innocent who will otherwise go to jail. (Pastor Nimoller’s poem about not speaking out when they came for
gays, leftists, Jews, etc).

Guantanamo prison, like Abu Ghraib, has many bad people. But it also has some innocent people. The state should not be allowed to get away with that.

I remember reading about Wei Jingsheng, the Chinese dissident, who had to leave China – after several years in jails. In “Bad Elements” Ian Buruma paints a very gripping and vivid picture of him—of Wei driving through red lights in America, ignoring traffic discipline; smoking in places where smoking is banned. He is stubborn, because the only way he can deal with authority that he has known—China—is by being uncompromising. It does make him look “uncouth” in civilized company.

And yet, unpleasant though he might be, Wei matters. Just as Solzhenitsyn matters even though when he came out of the Gulag, and once he started talking about Mother Russia, he sounded like an embarrassment.

The point about human rights activists in India is that like Teesta Setalvad, Sandeep Pandey, Aruna Roy, Binayak Sen and others, should remain unreasonable. Let the think tankers and policy-makers become practical. Because otherwise, everyone will support the idea of safety-over-liberty, and we would all be losers.

Think Franklin.

This is, again, not to defend or condemn the human rights brigade, but to explain why they are the way they are. In some ways, they are like evangelists, which makes them suspect for some, saviors, for others.

However, there is some awareness growing among human rights folks, that they should not forget victims of terror. If you see Amnesty International, they issued a statement after Jaipur blasts in which they condemned those who committed the acts. They called 9/11 “a crime against humanity”. At a recent human rights seminar in London, two important things came out: one, that if human rights lawyers don’t need to explain why torture is bad (because it is, period), why can’t they also argue that terrorism is
bad, period? Why do rights advocates contextualize terrorism? Why do they call it “the weapon of the powerless” when those who perpetrate terror are extremely powerful, often woman-hating neanderthals (my words)? Why do victims of torture get elevated when they are themselves human rights abusers, to the status of human rights defenders and get honored? Yes, they are victims when they are tortured or detained without due process of law, and they should get legal access and not get tortured. But they need not be on a pedestal. Merely because you were in Gitmo does not make you qualify for the Nobel Peace Prize.

I suppose it is that correlation/causality argument again, right? Joyce, his hand, kiss, writing, doing a lot of other things?

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Pelosi should have stayed in Washington

The useless (to the Tibetans) charade of visiting the Dalai Lama

“If freedom-loving people throughout the world do not speak out about Chinese repression in China and Tibet” Nancy Pelosi said, “we have lost all moral authority to speak on behalf of human rights anywhere in the world”.

She may not be exaggerating. But the issue is not about the freedom-loving people of the world, who are already speaking up against Chinese repression in Tibet. The issue is of ostensibly freedom-loving governments and political leaders of the world, who are not. It is all very well for the Speaker of the US House of Representatives to travel half-way around the world and stand beside the Dalai Lama at this time. It plays well to the world’s television cameras and to Ms Pelosi’s constituents back in America. But by way of meaningful support for the Tibetan struggle, it means little. On the contrary, it will allow China’s Communist party to project the Tibetan protests as part of an American conspiracy to shame China.

If she really wanted to support the Dalai Lama’s struggle, she needn’t even have made the trip to Dharamsala. Perhaps the US Congress could have adopted a stern resolution. Perhaps American congressmen could try and compel the Bush administration to be blunt in its criticism of China. And perhaps (yes, we’re stretching it), freedom-loving American legislators could compel the Bush administration to do something about it.

No, Ms Pelosi and US legislators are not doing that. Regardless of their sincerity, they are content to only put up another show of the dismal political theatre. At the Tibetans’ expense. Ms Pelosi could have spared us this act.

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India can do better on Tibet

India muddled on the protests, but it must rethink its Tibet policy

When China’s prime minister said he “appreciated” the Indian government’s response to public protests by Tibetan refugees, many interpreted that he was sending over a note of thanks. But Wen Jiabao’s statement could actually have been a warning.

“The Tibetan issue is a very sensitive one in our relations with India,” Mr Wen was quoted as saying by AFP news agency. “We appreciate the position and the steps taken by the Indian government in handling Tibetan independence activities masterminded by the Dalai clique.” [‘BBC’]

It is the first sentence sets the context.

As The Acorn argued while criticising the decision to stop protesters from attempting to cross over into Tibet, there is room for India to take a position that is less deferential to China. Sumit Ganguly similarly condemns the Indian government for cracking down on peaceful protesters and notes that being seen as unwilling to offend China will make “India’s claims to great power status in Asia, let alone beyond, appear utterly hollow”.

In Brahma Chellaney’s opinion, “it is past time India reclaimed leverage by subtly changing its stance on Tibet.” He proposes three changes: first, that India must bring Tibet back into focus in bilateral negotiations, placing the onus on Beijing to make Tibet a political bridge between the two countries; second, that India should treat the Dalai Lama as an ally and plan for the time when he is no longer on the scene; and third, India should stop “gratuitously referring to Tibet as a part of China”.

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Chennai rejects

Some opinions just can’t make it to the People’s Daily of Chennai

The Beijing correspondent of The Hindu can hardly be classified as a critic of the People’s Republic. But when Pallavi Aiyar wrote a piece that compared India and China that showed the latter in rather unfavourable light, she had to publish it in Asia Times Online, a Hong Kong (Special Administrative Region of China) based publication. It is understood that The Hindu, ‘India’s national newspaper’ declined to publish it. Oh! the irony.

In direct contradistinction to China, India’s polity has flourished precisely because of its ability to acknowledge difference. The very survival of India as a country, given the scope of its bewildering diversity, has been dependent on the possibility of dissent…

In China, regular lip service is also paid to the country’s own, considerable diversity. During the National People’s Congress’ annual session, for example, delegates representing China’s multiplicity of minorities swish around the Great Hall of the People in Beijing in their “ethnic” dresses. Beijing regularly talks of the religious freedoms enjoyed by the country’s Buddhists, Christians and Muslims.

But in fact, the fundamental tenet of China’s political philosophy is not diversity but uniformity. This homogeneity does not only extend itself to the tangible, such as architecture or the system of writing alone, but also to thought.

Even in the modern China of the 21st century where there are more Internet users than even in the United States, those who disagree with mainstream, officially sanctioned views outside of the parameters set by mainstream officially sanctioned debate, more often than not find themselves branded as dissidents – suspect, hunted, under threat.

The insistence on “harmony” as the only reality and inability to admit genuine differences in interest and opinions between the peoples of a country of the size and complexity of China is ultimately the country’s greatest weakness.

Talk of political reform in China continues to be bound by the “harmonious” parameters set by Hu Jintao, the president. The idea is that everyone’s interests and opinions are to be balanced and resolved without conflict…

For China’s authorities to simply deny the reality of the problem, blame all tension on an exiled leader and insist that the majority of Tibetans couldn’t be happier with the Communist Party’s harmonious policies, is self-defeating. [Asia Times]

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My op-ed in Mail Today: Free speech checks intolerance

Mr Thackeray’s actions are an opportunity to understand how competitive intolerance might be defeated

Excerpts from my op-ed piece in today’s Mail Today:

The state itself —and increasingly under the UPA government — has, in addition to caving in to intolerance, frequently indulged in unnecessary conscience-keeping that is at once laughable and abominable.

Raj Thackeray obviously knows this. His recent invective against “North Indians” living in Maharashtra is only the latest escalation in a grand arms race being played out across the length and breadth of the country. If the political system rewards those who mobilise people along parochial lines, the popular media obfuscates divide-and-rule politics by wrapping it in the language of vote-banks, secularism and social justice. So the juggernaut of competitive intolerance rolls on, unchecked.

So doesn’t this mean that we need curbs on freedom of speech? Couldn’t much of the violence been prevented if Raj Thackeray’s party magazine had simply been banned and television news channels censored?

Not quite. Newspaper reports and incessant coverage by television channels only brought the drama into our drawing rooms. But the banning of its house publication would not have deterred Mr Thackeray’s sena in its mission, for the action channel for political mobilisation and street violence works independently.

On the contrary, laws abridging freedom of speech have created incentives for the political use of intolerance.

Faced with a choice between taking “action” against an offending writer or facing down a mob of rioters, it is likely that a rational government official — from district magistrate to home minister — will choose the former. It works this way because the government official has the choice.

This choice offers those charged with maintaining law and order a convenient escape route. The Maharashtra state government, for instance, could pretend to be taking “action” by arresting Mr Thackeray and Abu Azmi for their incendiary speeches, after the damage had been done.

The only way to maintain law and order is to bring the violent to justice. But after the drama of Mr Thackeray’s arrest, the Maharashtra state government is unlikely to pursue the task of going after the thugs and their local leaders with any seriousness.

The upshot is that doing away with restraints to freedom of expression is not merely a matter of principle. Because those restraints often come at the cost of leaving criminals unpunished, getting rid of them is a practical necessity. [Mail Today JPG]

Update: Download the original essay in PDF form

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