Who is Afraid of Fundamental Rights?
An expected, but bizarre, public response in Maharashtra to the recent lifting of a ban on James Laine’s book Shivaji---Hindu King in Muslim India---provokes me to write this. Author Laine’s effigies were burnt in several places and his publisher, Oxford University Press were warned against selling the book. The Chief of the Shiv Sena urged the public to burn copies of the book. Other political parties joined him in the demand.
Then, on May 9, 2007 The Times of India shockingly reported that the Bhandarkar Oriental Research Institute that had been vandalized purportedly by people offended by a passage in Laine’s book, has now decided to support a ban on Laine’s book. (A research institute seeking ban on a book? That is unheard of! )--- The B.O.R.I. was reportedly seeking a ban on Laine’s book in view of a recent ruling by the Supreme Court rejecting an appeal challenging the Karnataka government’s banning the book Dharmakarana that allegedly hurts the sentiments of the followers of saint Basaveshvara and the Veerashaiva community.
‘Hurt sentiments’ now threaten to become a judicially acceptable ground for banning works of scholarship, literature, and art---some of them alleged to be maliciously motivated. Most of the people ---who claim to be ‘hurt’--- claim so on religious and sectarian grounds. They also take the law in their hands as they did in vandalizing the B.O.R.I. and got away without any punishment from the government of Maharashtra.
Then there was the ‘public outcry’ against the Hollywood actor, Richard Gere’s
mock-erotic on-stage foreplay with Bollywood actress Shilpa Shetty at an AIDS-awareness show. This is supposed to have ‘hurt public sentiments’. A PIL was filed against Gere and an overenthusiastic magistrate promptly issued an arrest warrant against the American actor. The magistrate has been transferred since. The frivolity of such complaints ought to be prevented by law. There has to be legislative protection, for instance, for artists such as M.F.Hussain who has been harassed by known vigilante organization with no respect for the values of civil society.
These various instances of ‘public outcry’ seem unrelated; but they are not. They point to the fact that though 57 years have passed since this nation embraced its Constitution, few Indians have grasped the implications of the fundamental rights it enshrines. These rights are the foundation of a liberal, democratic, secular and civil society respectful of its own plurality. They are not the legacy of the British Empire, as some believe; they are the foundation of a new and modern secular nation-state, where all citizens are equally empowered, and where the state and an individual are also equal in the eyes of the law. Also, it has to be understood that secularism is a commitment to neutrality towards all religious and sectarian beliefs and practices; and not equal sensitivity to every religious sentiment. By the way, what is religious sentiment? What is cultural tradition? In a multicultural and multireligious society, can such sentiments be used to tyrannise dissent, prevent debate and discussion, and ultimately to make a mockery of fundamental rights? Will government actions and judicial decisions be dictated by threats from rioters, vandals, arsonists, and their extra-legal armies?
Our founding fathers bitterly argued its many features before ratifying our Constitution. What they did not realize, then, was how the Indian polity and its many constituent factions would translate it into practice. They did not realize, for instance, that caste Hindu politics would become stronger rather than melt away. They did not realize that Hindu revivalism and Muslim fundamentalism would temporarily lie low only to explode into communal riots, pogroms, and state-abetted genocide just fifty years later. They did not realize that adult franchise would not automatically result in cleaner electoral politics. The did not foresee the slow and steady rise of populism, linguistic and cultural chauvinism, waves of xenophobia, and a decline in civil order.
They also failed to see that the British Empire’s real legacy would be its bureaucratic apparatus and the police that were intended to rule a subject people and not citizens with their rights in place.
In these, they left what has now become the foundation of corruption and abuse of power. It is an intriguing point whether the elected representatives of people corrupt the bureaucrat or vice versa. It is just as hard to tell whether money is translated into electoral power or it is the other way round. The apparent wealth of newly risen politicians and political parties, as well as vigilante groups that go on a rampage when their ‘sentiments are hurt’ goes unnoticed by internal revenue officials, themselves under pressure from politicians.
When the judiciary defends the Constitution that is found variously inconvenient by people with anti-Constitutional interests, judicial activism is seriously discussed by those who believe that Parliament is above the Constitution. They do not pause to ask whether judicious legislation is not the real answer to judicial activism or intervention.
It is assumed by most people in India that the electoral system is for laundering the character of any contestant. Most Indians see democracy as rule by the majority and values as something that popularity polls decide. People with criminal records believe that if they could become legislators, they could themselves be the law that they already think they are. This absurd logic seems to have a lot of support, too.
Banning any book is restricting citizens’ right to read. Banning a controversial book is to shroud in secrecy the alleged controversial elements in it without reasonable public discussion and debate. A section of the public, or even a majority of public opinion, cannot claim that what hurts its sentiments should therefore be hidden from everyone else. As for burning books, Adolph Hitler---Mr. Thackeray’s hero---tried to create a fascist culture out of the smoke of burnt books. He failed. However, some Indians still feel they will succeed by making illiteracy and uncivil behaviour the ideals of their followers.
Our Constitution treats us all as equals regardless of our gender, religion, caste, and creed. However, it does not ban the Manusmriti, the Holy Koran, the Old and the New Testament, and other sacred books that make all those discriminations. It simply empowers us to make a choice of faith and belief. Our Constitution does not tell men and women what to wear, or what to eat, or what to see, or what to read, or what to think. We are a secular state that draws no lines between the sacred and the profane. Our state is concerned solely with this-worldly good governance and common public interest.
Lord Acton, the great 19th century English historian of liberty, observed, “It is bad to be oppressed by a minority, but it is worse to be oppressed by a majority. For there is a reserve of latent power in the masses which, if it is called into play, the minority can seldom resist.” He, then, goes on to warn us, “But from the absolute will of an entire people there is no appeal, no redemption, no refuge but treason.”
Our electoral system is based on universal adult franchise. It threatened caste Hindus with the prospect of facing empowered dalits, scheduled castes, and tribes. It unsettled Hindu revivalists by raising the spectre of the power of collective Muslim votes. It is now making men fear women voters.
None of these fragments of the nation’s polity, at any level, want a secular national mainstream to emerge. They do not even want to think about it. They have been forced into alliances with their traditional enemies. What they share in common is not the love of democracy but its fear. They prefer populist protest, violent demonstration, and public exercise of majority muscle to discussion, debate, or any other rational response to what they do not agree with.
“Hurt sentiments’ is a euphemism for ‘justified anger’ whose violent public expression is considered lawful.
Threatening a riot over any self-expression a group of people disagrees with has become a political tool that hides behind existing laws.
Take the recent case of Chandramohan, a fine arts student of the Maharaja Sayajirao University of Baroda. A local lawyer, Niraj Jain, invaded the university campus with a bunch of goons to disrupt the young artist’s in-faculty and on-campus exhibition which was not meant for the public. He demanded that the exhibition be immediately closed. He also had the art student arrested.
The Dean of the Fine Arts Faculty, who stood firmly behind the student, has since been suspended by the Vice Chancellor of the University. This is obviously a case of political orchestration and a threat to incite the public against a minority---in this case an academic institution, its faculty, and its student community. The Bajrang Dal, the Vishwa Hindu Parishad, the B.J.P. and their invisible mentors the R.S.S. are obviously involved in this ugly affair. The Vice Chancellor is a political appointee and a B.J.P. government is in power in Gujarat.
Politicians and leaders of every ilk are afraid that the Constitution has made India increasingly unpredictable in the last 57 years. They find that the wrong people are empowered by the Constitution: the dalit, women, or even the dissenting intellectual, scholar, writer, or the avant garde artist. So most of them direct their rage and desperation against the very book they take an oath of allegiance to, namely the Constitution of India. However, they do this cleverly by misusing and frivolously interpreting certain sections of the Indian Penal Code.
We are fortunate to be over one billion people ruled by a Constitution that does not allow any minority or majority to oppress the individual. We are fortunate to speak many languages, practice different religions, and have regional traditions that vary. We are lucky to be recognized as individuals equal before one law.
However, how many democracies can a single nation-state hold? The individual, from whose rights our state itself derives its sanctity, is in a permanent minority of one. From that minority of one emerge smaller or larger consensual groups, whether they are religious, ethnic, linguistic, or sectarian. The right to express oneself, the right to debate with others and to argue against them, the right to publicize opinion and to criticize it, the right to question beliefs, the right to propagate views---all these are interrelated and inseparable.
Are we in a state of social, cultural, and political anarchy not apprehended by our founding fathers 57 years ago? Is our system beginning to crumble under the weight of our massive population and its variegated constituents? Why do so many people in the ruling class find our Constitution increasingly inconvenient? Why is everybody afraid of fundamental rights?
The rights of the individual are the cornerstone of our Constitution. Those who seek to curtail those rights by demanding bans on books, paintings, plays, films, or public shows that ‘hurt their sentiments’ should openly say that the Constitution of India hurts their sentiments most. They should also openly confess that they would not hesitate to resort to inciting public feelings, causing riots, and provoking arson and looting should the law not bend in their favour.