Indian constitutional democracy: a freedom in crisis

Declining political morality and increasing moral policing are suffocating the rule of law in India, shrinking spaces for civil dialogue and threatening freedom of speech, says Vijay Nagaraj
Vijay Nagaraj
25 January 2011

Sixty years ago, the First Amendment to India’s Constitution imposed restrictions on the right to freedom of speech and expression, in contrast to its celebrated namesake in the United States.  Free speech—the very essence of democracy—has since been subject to much judicial and political controversy, but confronted with significant economic, social and political stresses it faces particularly grave challenges in India today, as events of the past year highlight.

True, India is not one of the ‘usual suspects’ in this matter but reality suggests otherwise. According to The Guardian, ten citizens were killed in 2010 for demanding their right to know under India’s Right to Information law, a toll likely to be higher given that authorities frequently understate threats faced by those demanding information likely to expose abuse of power. Over 2010, the Free Speech Hub recorded 27 attacks and nine cases involving arrests or detention of journalists; writers and civil liberties activists also faced attacks and in four cases faced prosecution for sedition—under a legal provision of British vintage. It is the stories beyond these figures that need telling, and worrying about.   

Let us start with Mumbai, arguably India’s most cosmopolitan city, commercial hub of shining India and capital of a state ruled by the ‘secular’ Congress party. Author Rohinton Mistry’s Such a Long Journey was removed from the syllabus of Bombay University within 24 hours of an undergraduate student objecting to its portrayal of the Hindu radical Shiv Sena, a party led by his grandfather, Bal Thackeray.  Writer Arundhati Roy and two others face charges of sedition for their utterances at a public meeting in Delhi that Kashmir is not an integral part of India; precisely what most Kashmiris have been saying, for over five decades now. In Kashmir itself, a college lecturer faces charges of inciting secession because his English language examination paper included a question inviting students to discuss whether Kashimiri youth involved in recent stone throwing protests were heroes, and to translate into English a passage that mentioned their killing by security forces.

 Then there is Dr. Binayak Sen—a physician awarded the prestigious Jonathan Mann award for Global Health and Human Rights in 2008 for his services to the rural poor. Arrested and denied bail for two years, Dr. Sen, now an Amnesty International Prisoner of Conscience,  was convicted of sedition, found guilty of acting as a courier for an imprisoned ideologue of Maoist rebels, one of the many prisoners he was treating as a visiting doctor. The flimsy nature of the evidence, the fact that key prosecution witnesses, including prison officials, turned hostile and numerous other inconsistencies in the prosecution’s case notwithstanding.

Two other disturbing and related trends also merit attention.  The first is the ease with which law enforcement agencies and courts entertain prosecutions on grounds of offending public morality or religious sentiments. The second is the growing influence of organisations based on religious and caste affiliations to impose restrictions on what one can say, wear, broadcast, perform, whom one can marry etc. The Free Speech Hub study also revealed that books, cinema, television shows, mobile communication or theatre performances were subject to curbs or restrictions in 33 instances by vigilante groups and in 34 instances by state or judicial bodies respectively.

The most high profile examples include cases involving a nude painting by the renowned artist MF Hussain and comments made by a South Indian actress on the prevalence of pre-marital sex in society. Though higher courts eventually settled both in favour of free speech, they led to a spate of criminal cases, protracted litigation and continued harassment, and in the case of Hussain it all but ended his chances of exhibiting in India, culminating in his emigration to Qatar.  In fact, some fanatical elements threatened Arundhati Roy with much the same fate following her remarks on Kashmir. At the extreme, expressions of love that defy caste or religious prescriptions can cost people their lives—according to CNN, five such couples were killed in one week in June alone.

 Declining political morality and increasing moral policing are suffocating rule of law, shrinking spaces for civil dialogue, narrowing accountability and freedoms, and even taking lives in India. A seat at every global high table nor the pomp and pageantry of 26th January Republic Day parades can hide the chilling effect on democracy.  Bhimrao Ambedkar, the architect of the Constitution, warned at the time of its adoption that the persistence of socio-economic inequality within a framework of formal political equality is unsustainable. However, with even the latter unravelling the decade ahead will test to the limit the ability of Indian state and civil society institutions to meet some of the most profound challenges to constitutional democracy since Independence.   






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