Minimum arbitrariness

These laws were premised on imagining Indian citizens in a certain way. Indian citizens were not capable of handling liberty, they were prone to violent excess that required their speech to be restricted, they were thin-skinned and would take offence at almost anything. India’s citizens could not be trusted to handle liberty, so the paternalistic state needed to step in. These powers in turn, created a whole train of abuses in our system that all political parties have connived in. The Nehruvian consensus was this: The state is virtuous, the citizen infirm. Therefore, empower the state at the expense of the citizen. If Modi is serious about “minimum government” in the sense of the term that matters most, he would do well to concentrate on the state of our civil liberties. The Nehruvian state, in this domain, had become, “maximum arbitrariness, minimum freedom”. Can creating the republic anew reverse this presumption, towards “maximum freedom, minimum arbitrariness”?

Just think of the appalling number of bad laws abridging liberty that the Congress has bequeathed to us. If the BJP misuses them, the Congress will have set the precedent. Why do we still have sedition laws in the books, routinely used to suppress social protest and dissent? Why have the restrictions on speech enacted by the first amendment been so widely used? Ironically, on these two issues, the BJP actually has an intellectual inheritance to claim: K.M. Munshi and Syama Prasad Mookerjee were the two most articulate critics of some of these draconian provisions. It is a pity that the BJP forgot its own inheritance.

The list can go on. The Armed Forces (Special Powers) Act needs a thorough review and needs to be withdrawn from areas like Kashmir and the Northeast. What might minimum government mean for Indian citizens in an area subject to such draconian restrictions? Then there is the list of archaic laws: Section 295A of the Indian Penal Code is unlikely to repealed. But it does need to be amended because the way it is functioning in practice and the interpretations the court has given to this law have a chilling effect, almost equivalent to a blasphemy law. It is now an obstacle even to works of scholarship. Section 66A of the IT Act, under which five youths were just arrested in Karnataka for criticising Modi, is a law designed for abuse. The government may not have a hand in this. But that is precisely what makes this law so dangerous; it is open to the interpretive whims of officials. The colonial lawmakers and the assemblies under them at least had the good sense to more clearly articulate what terms like “offensive” might mean. This law is so vaguely drafted that it will have far-reaching effects on social media and will be abused by chief ministers of all parties. There are other laws that need reform. As Gautam Bhatia recently pointed out in an eloquent article, our law for criminal defamation is woefully out of date and makes the questioning of companies and states that much harder.

The BJP does have a reactionary position on Section 377 of the IPC. What will minimum government mean if it intrudes in the most intimate aspects of our lives? Hopefully, the Supreme Court will correct its own howlers, since this is a fundamental rights and discrimination case. But the BJP should not stand in the way. There is absolutely no effective law protecting privacy or insulating citizens from pervasive surveillance. The list could go on. The acquittal by the Supreme Court of the six men accused in the Akshardham case should be a reminder of how precarious our civil liberties are. This was not just a larger failure of our system, tragically played out through 11 years of the lives of six men. It also showed how little protection we have against the presumptive rush to judgement by state power.

All these laws abridge an important aspect of our liberty. They say government should be trusted more than citizens. They are enacted in the name of making us more secure. But they have the opposite effect of making us more insecure. Many of these laws, like laws protecting offences against religion, generate more offence by their very existence. A state that routinises the use of sedition or special powers is not likely to elicit allegiance from its citizens. And a state that does not give its citizens the private space they require for their dignity breeds the worst kind of psychological fears. These laws, more than almost any other, are open to partisan manipulation and selective outrage. Each government wants them, and uses them against its favourite targets. We often object to them, not on the principle that these are bad laws, but on the basis of whom they target. These laws inherently discriminate in their operation. In some cases, fixing the judicial system is the answer. But the opposite is also true: when the laws themselves signal arbitrariness and disregard for individual dignity, it will generate judicial pathology.

These laws have extracted a price. In a country where due process itself can be the punishment, these laws increase the asymmetry of power between state and citizen. A genuinely new tryst with destiny would require a new tryst with freedom. If Modi is serious, this is the place to start. If he truly wants to overcome the Congress’s legacy he needs to start by making a new tryst with freedom.

The writer is president, Centre for Policy Research, Delhi, and a contributing editor for ‘The Indian Express’

express@expressindia.com