By M D Nalapat
Given
the elasticity of meaning of Indian laws and power of courts to take up
issues, it’s easy entangling a citizen in a case involving speech or
other forms of expression.
Any
country which aims to succeed in the 21st century needs to empower
rather than constrain its citizens. Unless an act exposes the general
public to harm, citizens need to be given the freedom to decide on their
own, rather than be led by the nose in the manner of cattle at a farm.
The philosophical foundation of India is Sanatan Dharma, which reflects
freedom of choice in a manner that few other philosophies do. Individual
choice is given primacy, and the decisions made are ratified by the
philosophy, rather than reviled. However, between the government and the
judiciary, save with the assistance of an electronic microscope, it
would be difficult to come across any activity that remains the
exclusive preserve of the citizen. Whether it be the workplace or public
spaces, the bedroom or the dining area, laws, verdicts and prohibitions
abound in such profusion in India that it is reminiscent of the
situation in Saudi Arabia.
Four years ago, it was possible that
India would be the first country in Asia to recognise the fact that the
gender of a life partner belongs in the realm of individual choice,
rather than that of the state. The Delhi High Court had struck down the
Victorian-era Indian Penal Code prohibition on partners of the same sex.
The move was globally welcomed for accepting the 21st century maxim
that the citizen has the right to decide on lifestyle matters. The High
Court verdict, however, was subsequently struck down by the Supreme
Court.
So, rather than India, it is Taiwan that
has emerged as the leader in Asia in the matter of the right to decide
on matters of personal union. The highest court there last week struck
down the longstanding prohibition on same sex marriage, thereby making
the judiciary in Taipei far more current with modern trends than is the
case with the US Supreme Court, which in some ways remains bound to
conventions and practices that ought to have faded away a generation
ago. Indeed, the US Supreme Court may even, in coming years, roll back
the right to abortion that was given in the Roe vs Wade judgement of
1973. Even there, two justices dissented, with one going on to head the
Supreme Court for decades. Especially during the term of Chief Justice
Earl Warren, who headed the US Supreme Court for 16 years ending 1969,
several judgements were delivered that dramatically increased the power
of the citizen vis-à-vis the state. As a consequence, the US shook off
the trauma involved in losing the Vietnam War and once again emerged as a
global powerhouse, retaining to this day its edge in technology and in
the knowledge industries. Dragging US jurisprudence back a century, the
way some in the Republican Party seek to do, will ensure that the US
gives up its primacy in the global order. However, as yet this has not
happened, and overall, freedoms in the US (including freedom of speech, a
precondition for rapid growth of the knowledge sector) remain high. In
India, by contrast, the HRD Ministry (to take one of several examples)
devotes much of its attention towards micro-managing the educational
institutions placed in its grasp, bringing in an artificial uniformity
and an averaging of standards that has driven out excellence from our
educational landscape. Even the PMO has not thus far been able to temper
the HRD Ministry’s urge for control.
Freedom of speech by the ordinary citizen
is essential if a country is to leverage its human resources in the
knowledge industry. In India, getting into trouble because of deliberate
or accidental misrepresentation of the intent of words spoken or
written is commonplace. In the Justice Sawant case, Rs 100 crore was
accepted by the courts as reasonable compensation for a supposedly
defamatory showing of a few seconds onscreen of the wrong image. Hence
the path was cleared for claims in sums that would bankrupt almost
anybody. Given the elasticity of meaning of several of the laws in India
(thereby making it very difficult to predict the outcome even in cases
where in other countries, the evidence on record would make the verdict
obvious), as well as the power of courts anywhere in the country to take
up issues almost at will, entangling a citizen in a case involving
speech or other forms of expression is not a particularly difficult
exercise. Nor is it difficult for the authorities to arrest an
individual on any of the numerous grounds that are regarded in the
statutes as liable for punishment, including in the laws dealing with
speech. Until the Supreme Court and Prime Minister Narendra Modi step in
and act in the manner the Warren Court did in the US, and unless both
separately expand the boundaries of freedom of the citizen beyond the
hyper-confined spaces of our colonial-era legal architecture, it will
remain much easier for a knowledge start-up to succeed in San Jose,
rather than in Pune. It may be unrealistic to expect officials and their
political masters to roll back the grip of regulations and prohibitions
that stifle initiative in a manner designed to ensure a copious flow of
bribes. However, admirers of Narendra Modi remain hopeful of such an
initiative. Should the Prime Minister and separately the Chief Justice
of the Supreme Court of India work on transforming the landscape of
governance for promoting individual empowerment rather than constraints,
and ensure that processes energise rather than paralyse individual and
corporate initiative, the Knowledge Industry alone would generate much
of the 10 million plus additional jobs needed annually for India to
escape from the potential chaos of mass unemployment. There is no better
way towards double digit growth than by giving the 1.26 billion
citizens of India the freedoms that are commonplace in the countries to
which some migrate and thereafter excel.
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