On liberty

One can also pick laws from several other areas. These laws are also undergirded by institutions like the police whose functioning needs radical reform. Whenever these laws are used by the state, parties protest on a case by case basis, reminding us what is wrong with these laws in the first place; they give the state too much right to withhold our liberty or grant it to us as an act of noblesse oblige.

There are other significant differences between the Congress and the BJP. But it bears repeating that the most chilling fact is that the BJP has not really needed to invent any new laws to facilitate state control, when it wants. If anything, irony of ironies, in places like the Northeast, it has positioned itself by tempering laws like AFSPA. At this juncture in India’s history, it is bad faith to say, we will comment on a case by case basis when it suits us, but will leave the legal structure of state interdiction intact.

This, for example, is exactly what is happening in the recent use of UAPA against lawyers and activists. Why is it important for the Congress to propose a new Charter of Freedom, and articulate it in institutional terms? First, it will be a decisive signal that the Congress has learnt from its mistakes, and is willing to shed the burden of the past. Perhaps it was the exigencies of Partition, but the fact is that the Congress became unconscionably statist when it came to civil liberties. It started with the debate over the First Amendment where Jawaharlal Nehru was on the wrong side of history. The Congress needs to come clean if it is to be a more effective critic of authoritarianism. This does not just apply to civil liberties. It also applies to a whole range of other institutional spaces. Anyone minimally acquainted with the history of higher education, for example, still cannot, with a straight face, accept the Congress’ protestations over university autonomy.

Second, the Congress and Rahul Gandhi are misdiagnosing why they are struggling. The problem is not that they were perceived to be anti-Hindu. The problem was two-fold. They could not consistently apply an individual rights standard across communities and ended up making rights a competition between communities. But the deeper problem was the real lack of courage when it comes to defending civil liberties. Rahul Gandhi’s main challenge in projecting leadership is not personal niceness or generosity. He also does not have a record of governance, as a minister or chief minister. He needs recourse to positions that can show that he has courage, the ability to lead from the front rather than to follow.

But even with newly acquired energy, that element of leading from the front still remains an open question. Has the inner working of the party really been reformed? If the party showed courage and categorically came out in favour of a new Charter of Freedom, it would show a courage of conviction. It would speak to young people, powerfully. The Punjab “blasphemy” law episode is disconcerting precisely for this reason: Not only is the Congress not batting for freedom and creating a dangerous precedent, it also casts doubt on Rahul Gandhi’s ability to bend the party towards the arc of liberty, if liberty is understood in institutional terms.

It is one thing to shed an anti-Hindu image; it is quite another to cave in to those who want to coddle religion, and that line is still not bright enough in the Congress party. Third, one of the worries about what a second term for Narendra Modi might mean is articulated in terms on what it might mean for institutions. So, part of a counter has to be that the Opposition is ready for a new institutional narrative. It will not let a politics of fear legitimise statism that puts personal liberty at risk.

It is ready to say: Minimum government, maximum governance, as currently used, is a hollow slogan. If minimum government means anything, it means the most in areas of personal and civil liberty. The Supreme Court has struck a resounding blow on behalf of freedom in Navtej Johar, and it is to the Congress’ credit that it has welcomed the judgement, and not hidden behind the evasions and silences of the ruling party. But the broader defence of personal liberty, the freedom to speak, the freedom to choose one’s religion, what one eats, the freedom to protest, protection against detention without being charged for up to six months, all require more robust legal protections.

They also require, if they are to be credible, better police and courts, whose due processes can make a mockery of the best laws. It is also a mistake to think that a strong legal system and better policing are only elite issues. Quite the contrary, the poor face the greatest brunt of their dysfunction. More than shibboleths on Nehru and Gandhi, the India of tomorrow requires a new Charter of Freedom. Will any party serve the cause of justice by trying to occupy that space?