In Defence of Liberty

Discussion in 'Politics & Society' started by ajtr, Jun 23, 2010.

  1. ajtr

    ajtr Veteran Member Veteran Member

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    In Defence of Liberty

    The purpose of the issue was not to just to catalogue various areas that need reform, but also the various ways in which the state infringes on individuals using the legislative and judicial machinery at its disposal.

    “If we wish to preserve a free society, it is essential that we recognize that the desirability of a particular object is not sufficient justification for the use of coercion.” – Nobel Laureate FA Hayek

    In the process of conceptualizing this issue of Pragati, I asked the contributors to discuss “how the laws, their enforcement and the judiciary affecting can be reformed in India”. In my effort, I revisited the Constitution to understand the rules of the game and how it affects human action in areas of life as diverse as financial regulation and sexual freedom, and realised that Ludvig von Mises got it right when he said that “the idea that political freedom can be preserved in the absence of economic freedom, and vice-versa, is an illusion. Political freedom is the corollary of economic freedom.”

    The fundamental criterion for preserving individual freedom within a state is a constitutional democracy. After all there is no difference between the absolute power of an autocrat and the absolute power of a democratic state. The difference arises only when there are limits to to this kind of power imposed by a constitution. While it may seem contradictory at first thought, but the Constitution is the most undemocratic document. It poses strict limits on what a representative legislature can and cannot do. The most important part of a constitution consists of “negative rights” which imposes restrictions on the state to interfere with an individual’s life, liberty and pursuit of happiness.

    In India however, we haven’t been so lucky and are stuck somewhere between the unlimited power of a democratic state and a constitutional democracy. This is because the limits imposed by the covenant that India’s forefathers conceived have been deleted, diluted and disregarded at every opportunity. One may be tempted to ask why is this important to anyone other than a lawyer and judges? The constitution lays down the rules of the game for each player. And every Indian citizen has been cheated in the game because the opposing side keeps changing the rules for its benefit. This is been done for various reasons. Some rules are changed because of a specific cause such as equity or social justice, others to preserve a specific social or moral goal, and yet others to protect individuals from their own folly, and most often for the private benefit of the powers that be. The aim of this issue is to discuss how these rules affect incentives and thus influence human action.

    The most fundamental of all is right to private property. What does this right really mean? The right to private property essentially creates a sphere in which the individual is free of the state. So while it begins with the ownership of capital without interference, it also means the ownership of ones bodily integrity and the fruits of ones labour. The abridgement of this right in India was originally to take land from the zamindars and has extended to taking land from poor farmers, nationalizing banks and businesses, preventing the use of ones property without interference and has stretched into the realm of political freedoms such as the right to expression through a work of art or to publish a book.

    Individual rights and freedoms which have conventionally been classified as “economic rights and freedoms” or “political and social rights and freedoms” are uni-dimensional labels. This becomes more clear as the various themes in this issue are explored.

    TCA Anant discusses the role of the judiciary in preserving these property rights and charts the change in this role from a conservative to an activist judiciary. He discusses the role of separation of powers, where each function of the state is performed by a different institutional entity, in preserving a limited constitutional democracy and the economic rationale for such a system of separation of powers and checks and balances. He sheds light on how the role of the judiciary as the protector of individual freedoms has now metamorphosed into an activist judiciary which can be as arbitrary as the other wings of the government. Most importantly, it becomes clear that men can be arbitrary in a position of power whether they legislate from a parliament or rule from the bench.

    On one hand, Barun Mitra uses the right to private property, conventionally an economic right, to defend the right to freedom of expression of homosexuals and analysing the recent Delhi High Court judgment de-criminalizing unnatural intercourse. A similar case can be made to defend MF Hussain’s right to paint and book publishers’ right to publish Satanic Verses and Salil Tripathi’s right to comment on free speech in his latest book Offence-The Hindu Case, which is reviewed in the books section.

    On the other hand Atanu Dey discusses the right to religious freedom, conventionally a socio-political right, and the separation of the church and state to expose the economic tyranny brought about by arbitrary and discretionary taxes and religious subsidies. An economist would tell you that subsidies are justified for the provision of a public good or when the provisioning is sub-optimal. Dey exposes how the Haj subsidy does neither and is an arbitrary use of power by politicians to gain votes subverting one constitutional pillar of the separation of church and state in the name of another value of religious freedom. Such arbitrary laws only invite more of the same and politicians are now advocating that poor Hindu and Christian groups get similar subsidies for their pilgrimages. This analysis has been extended to the functioning of industries in the markets by Harsh Gupta in his critique of India’s competition and antitrust policy. While the abolition of the MRTPC is a welcome institutional change, the CCI suffers from the same fundamental problem of arbitrariness in its rulings, penalizing firms for charging a high price as well as a low price, subverting rule of law.

    While constitutional rights and liberties determine the limits on how much the state can interfere in the sphere of individual action, there is a host of laws and regulations which interferes with the economic actions of almost every Indian. The adage that the road to hell is paved with good intentions is fitting for most Indian regulation. Indian laws and regulations often try to fight economic freedom and market forced to protect individuals. However in a world of rational economic individuals these have unintended and often disastrous consequences.The first and perhaps the most pervasive of these are labour laws. Jaivir Singh analyses how these well intentioned labour laws protect a small proportion of the formal labour force while marginalizing a majority of the workforce in the “unorganised sector”. Singh explains how these paternalistic laws created to protect the worker, often deprive him of the choice between work conditions and higher income or the ability to work in a legitimized status. The plight of the labour force is also shared by the capitalist due to the myriad of regulation on entrepreneurs. Aadisht Khanna emphasizes the need for industrial liberalization along with market liberalization to allow the entrepreneur to unleash prosperity. The current regime only fosters corruption and preserved special interests and hurts the small businessman it sought to protect.

    How changing the rules changes the behaviour of the players can best be seen at work in Ajay Shah’s analysis of financial regulation and environment. The repealing of the archaic law controlling capital issues and legislating to set up SEBI changed the institutional structure of the financial markets, in particular making the equity market take off. An excellent juxtaposition is offered with the banking sector which is still shacked in an old institutional framework. If the magic of changing the institutional structure is to be believed, there is a strong case for creating such institutional changes in other sectors. K Satyanarayan is rooting for similar institutional reforms in the education sectors to make schools flourish like equity markets. He suggests that allowing for-profit educational institutions will do the trick.

    The purpose of the issue was not to just to catalog various areas that need reform, but also the various ways in which the state infringes on individuals using the legislative and judicial machinery at its disposal. Mises said that “freedom is indivisible. As soon as one starts to restrict it,one enters upon a decline on which it is difficult to stop.” This has become the reality of the Indian social, political and economic spectrum where no means are left unused to abridge the rights of individuals and their ability to make decisions. This issue is in defence of our right to think, talk and trade without interference. It is in defence of our liberty.
     
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  3. ajtr

    ajtr Veteran Member Veteran Member

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    Time for honest analysis


    Subhash Kashyap

    In the 35th anniversary week of the Emergency, let’s read the fine print in the 44th Amendment for a check on whether we are really secure from another spell of dictatorship.

    Every five years we recall the summer of 1975 when the history of modern India was given a wholly new course by Indira Gandhi through the imposition of the Emergency. Now it is time for reminiscing on the 35th anniversary of that fated day, June 25, 1975 and I do so with grave forebodings because the passage of time has eroded much of our moral high ground vis-a-vis that ugly period. It is possible now to be a little more truthful than before, not only because many of the actors of that era have passed on, but also for the fact that we may be moving towards the juxtaposition of circumstances that may prove fortuitous for the inheritors of Indira Gandhi’s political legacy to clamp another Emergency on us.

    But I begin by using my vantage point as an official in Parliament House to stress a point which has so long gone unacknowledged by people arbitrating on what future generations should know about the Emergency. I was then the Director of the Records and Research section of Parliament and can vouchsafe that Indira Gandhi did not deviate from the essential of the letter and spirit of the Constitution. It must be placed on record that she kept both houses of Parliament functional throughout the 21-month period. And any scholar today would marvel at the freedom with which MPs discussed the functioning of government during the period and even got away criticising the Emergency. Wonder of wonders, nobody ordered me to excise the speeches of Somnath Chatterjee and Purushottam Ganesh Mavalankar. At the height of the Emergency the 25th anniversary of the adoption of the Constitution was celebrated by, among other things, the publication of a commemorative volume of essays. This 700-page document was released in 1976 and at least four of the contributors — Chatterjee, Ashoke Kumar Sen, Rabi Ray and Mannulal Dwivedi — wrote articles critical of the way civil liberties and fundamental freedoms were being undermined by zealous officials. Sen, who was a leading Congress figure, reiterated: “It is for the government to ensure that all powers to the Executive flows from Parliament.”

    Today, the worst excesses of the Emergency are recalled, and rightly too because we must ensure that it never happens again. But they don’t tell the entire story because those who followed Indira Gandhi did not permanently secure India from another round of abuse. How many of the new generation are aware that despite the 44th Amendment to the Constitution (1978), we are still at the mercy of the Indian political classes’ undemocratic tendencies? The Constitutional legitimacy of the 1975 Emergency, which gave a government the right to declare suspension of the Fundamental Rights in the event of external aggression and internal disturbances, can still be invoked because the 44th Amendment retained the essential privilege of an entrenched regime to interpret the precondition of “armed rebellion” in its favour. The leeway seized by Indira Gandhi in turning Jayaprakash Narayan’s movement to her advantage could, hypothetically, be repeated by the increasingly unpopular UPA-2 with Maoist insurgency. In 1975, all that was necessary was a communication from the Prime Minister to the President impressing upon the highest office the gravity of the situation. The 44th Amendment gave that power to the Cabinet — and everybody knows how powerless the will of the Cabinet is before the temper of the Prime Minister.

    I was awakened to this problem recently at a closed-door meeting of intellectuals and retired administrators convened by a senior minister of UPA-2. It was an off-the-record session, organised ostensibly to discuss the performance of the government at the end of its first year in office. The minister, after his harangue on the “achievements”, finally asked each of those present for their opinions. Surprisingly, not even one of the assembled persons had anything positive to say about the way UPA-2 has gone about its work and most of them even added some grim prognosis. This left the minister visibly irritated and he remarked in his summing-up reply: “If all of you hold this opinion of the government and if what you say is true, then it only shows that another Emergency is necessary.”

    This only shows how skin deep is our political rulers’ commitment to democratic ideals. Those who rest assured that nobody would “dare” impose another Emergency on this nation has, to begin with, a very flawed understanding of our political class. As I had lived and worked under the Emergency, I can say with authority that the common man’s perception of democracy and its actors is so dim today that he would not really protest if firm steps are taken to discipline the ‘masters’ and make them behave as true ‘servants’ of the people. The primal concern of the aam admi is his narrow set of needs. That is why, the aam admi still nurtures fond memories of the Emergency period because it was the only time in the history of free India when trains ran on time; the bureaucrats were accountable for shoddy services; corruption was under check and the rule of Law prevailed in most aspects of life. Apart from the chattering classes in Delhi and some state capitals no one had any complaints about Press censorship and the detention of senior political leaders. The latter was even sanctioned under the Constitution. As for Press censorship, L.K. Advani’s famous observation on the role of the media during the Emergency (“You were asked to bend but you crawled”) still rings true. Today, the credibility of the India Press is at rock bottom and everybody sees it as just another commercial activity.

    The excesses committed by Sanjay Gandhi and some officials made the Emergency very unpopular from the beginning of the second half of 1976. Most of the crimes were committed in the name of “Madam” with the big boss herself unaware of them. It is difficult to see an otherwise astute leader like her allowing atrocities to be committed on the Muslims and backward castes, the same who constituted the biggest vote block of the Congress. Also, because south India was largely free of the Sanjay menace, the electoral fortunes of the Congress in that part of India were not as bad as in the north. The Congress won most of its 153 seats there and its principal ally, MGR’s ADMK, won 19 seats in Tamil Nadu.

    So, the length of time and breadth of vision afforded to us by the 35th anniversary should be seized to introspect on whether or not we have been honest to ourselves on the history of the Emergency. The growing hiatus between the politically powerful and the powerless, the yawning rich-poor divide and the collapse of the moral binding of the Indian State breeds public yearning for dictators. And any smart ruling party could seize the opportunities afforded by the loopholes in the 44th Amendment.
     
  4. ajtr

    ajtr Veteran Member Veteran Member

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    The legacy of the Emergency


    Subramanian Swamy

    Many people assume that the Constitutional safeguards effected in the post-1977 era make up a permanent bulwark against a repeat of June 25, 1975. But, the tradition of ‘fixing’ democratic dissent is a permanent legacy of the Emergency.

    On the night of June 25, 1975 I had dinner with Jayaprakash Narayanan (JP) and a few others. Nanaji Deshmukh had asked me to be with JP for the entire day so that I could ensure that JP would come to Ramlila Maidan at exactly 6 pm.

    I knew JP ever since he and his wife, Prabha, had visited Harvard University in 1968, where I was a young professor of economics then. JP was in my care for three days, and I had arranged his public programmes for Indian audiences. JP took a great liking for me, and so when I returned to India to teach, at his behest I had to spend six months in Madurai district as a Sarvodaya worker.

    It was I who introduced Nanaji to JP, and was instrumental in preparing JP’s mind over three years 1970-73 to associate Jana Sangh with his student movement in Bihar. I was a Jana Sangh office-bearer from 1971 onwards till its merger with the Janata Party in 1977.

    On that fateful day of June 25, JP was to address with Morarji Desai a mammoth public meeting that Nanaji was organising to demand Indira Gandhi’s resignation. Her election to the Lok Sabha had been set aside by Justice Jagmohanlal Sinha, a Judge of the Allahabad High Court hearing the petition filed by Raj Narain.

    But arranging the Ramlila Maidan public meeting had led to a clash of egos between the two stern Gandhians, JP and Morarjibhai, over a typically Gandhian issue of punctuality. The Delhi Jan Sangh president, Madanlal Khurana, had in the posters put 5 pm as the time of the public meeting. JP felt it would be too hot at that time in summer for the people to come, so he said that he would come at 8 pm. But Morarji, being a stickler for punctuality, insisted that he would turn up at 5 pm and if JP did not arrive by then, he would leave the meeting and go home. Thus there was a crisis, and Nanaji wanted me to resolve this cold war between these two leaders.

    As a result I spent the whole of June 25 shuttling between short spells with a curt Morarji at Dupleix Road ( now known as Kamaraj Marg) and long discourses with smiling JP at Rouse Avenue (Deendayal Upadhyaya Marg), and finally resolved that both would come at 6 pm. I was then given the task to further ensure that JP does not change his mind and that I accompany him to the podium, and sit next to him.

    I recall this today to emphasise that the problems that we, who had opposed Indira Gandhi (Mrs G-I) faced, were much simpler then than the problems that the Opposition faces in countering Sonia Gandhi (Mrs. G-II) today. In fact the triviality of the quarrel as to what time to arrive at the public meeting highlights that there was no difficulty in taking a stand on fundamentally important issues.

    To begin with, there were then only a few in the Opposition who were ambivalent whether or not to oppose the policies of Mrs G-I and her government. There were some who were, but they were the exceptions. Opposition, therefore, to Mrs G-I posed no dilemma.

    But in the Emergency, paradoxically the process of political sanitisation of the Opposition had begun. Some could not bear the tribulations of the prison, and had written apology letters which were later used to blackmail them when Mrs. G-I was out of office.

    Today with Mrs G-II the situation has become truly Byzantinian. It has turned 180 degrees from what the situation was in the 1970s. Since 1998, the era of political “match fixing” between leaders of the ruling and Opposition parties began in full swing.

    Now, we see the spectacle of Mayawati, Mulayam Singh, Lalu Prasad and many others in the Opposition seeking favours from Mrs G-II to escape from criminal prosecution or assurance that their illegal foreign bank accounts are not made public. By this, the Opposition is diluted and in turn the ruling party’s atrocities remain unexposed. The weak protest against the Spectrum allocation if contrasted with the relative miniscule Bofors corruption brings this cartelisation or match fixing of politics.

    This match fixing has been extended to elections too whereby a weak candidate can be clandestinely — and for a price — assured for an Opposition stalwart and vice versa. The media, which could rip apart these sordid deals and expose them, is shackled by a lack of Opposition follow up in Parliament and the Assemblies. This enables the government to be the predator with the media barons, and even sometimes for media persons, life-threatening.

    The judiciary is affected by this match fixing. Who would, in the loneliness of the judicial chamber, want to be left holding the bag in a life and death case? It is therefore unlikely to see a Jagmohanlal Sinha in these circumstances of today.

    One consequence of these cozy relationships is that the will to fight and oppose is sapped. During the 1970s there was a zest to fight. We saw Chandrashekhar, Jyotirmoy Basu, Madhu Limaye, and even Raj Narain who made those sitting on the government benches in Parliament shiver when they stood up. Walkouts were rare. Adjournments almost never happened. Today, walkouts are routine and adjournments frequent, making it very convenient for all concerned.

    Central Hall was a crowded and lively place in the 1970s, where there was animated discussion on issues. Today, it is as dull and sparsely populated — as it was during the Emergency. Most discussions revolve around who is close to Sonia and who has fallen out of her favour. No Congress MP would today like to be noticed sitting sipping coffee with anyone she does not like. In the 1970s it was not like that.

    There is thus a disguised replication of the Emergency today, and there is not any political formation which is ready to take on this Emergency-like situation frontally. This also can be seen in media manipulation, which is de-facto censorship. This deemed censorship has been compounded by the 24/7 news channels which need to fill time slots to earn advertising revenue. The constant repetition of an embroidered truth, or a dressed up falsehood makes it the whole truth.

    The demonisation of Narendra Modi is an example of perverse and de facto press censorship through media management. Modi may or may not be an angel, nevertheless he has produced an economic miracle unparalleled in the history of any state, including the progressive Gujarat itself.

    But there no balance in slandering of Modi that goes on, day in and day out orchestrated in a section of the media with clear links to Mrs G-II.

    The Gujarat riots of course are a shame on any society, but why does nobody refer to Godhra? Or what about responsibility for the anti-Sikh riots of 1984, not to mention the contrived Operation Blue Star that destroyed the Akal Takht? Has either Rajiv Gandhi and Mrs Gandhi-I been targeted the way has Modi been? Clearly such targeting would not be possible unless there was a de facto press censorship.

    In the 1975-77 period, we had a tested leadership who were Freedom Fighters such as JP and Morarji, backed by the organisation of the RSS that survived the Emergency by going underground. The situation was also sharply defined between those who wanted democracy and those who thought that India did not deserve it.

    Today the situation is much more pernicious. We have the form of democracy but its content has been corroded. We have leaders who failed to live up to the main promises they had made to the people and lack the legacy which JP and Morarji had. A pall of cynicism and despair has descended on the middle class, who now think freedom is not in peril because we were victorious against the Emergency. Democracy they think is a settled fact in India.

    Thus, those in power do not have to declare an Emergency to be above the law and hollow out democracy. The struggle against the Emergency thus paradoxically has produced a complacency which will debilitate civil society and make it impotent when the de facto Emergency is finally acknowledged and it becomes necessary to oppose it.
     
  5. ajtr

    ajtr Veteran Member Veteran Member

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    How the media undermined itself


    Shyam Khosla

    A journalist who suffered incarceration during the Emergency recalls an editor who compromised him and an anti-Indira politician who effected his own version of press censorship even as a MISA detenus

    The first hint of the impending national tragedy came my way on June 26, 1975 when I switched on the radio to listen to the news but found to my surprise the Prime Minister speaking about the imposition of Emergency and arrest of “some” leaders to save the nation from “impending chaos.” There was no mention of press censorship. I spoke to some senior Opposition leaders as they were being rounded up in Rohtak — the Haryana town where I was a Staff Correspondent of The Tribune — and members of the civil society and filed a story on the widespread indignation against the imposition of internal emergency.

    Within minutes, my news editor was on the line shouting at me for my “indiscretion” and informing me that censorship had been imposed. As a precaution, I didn’t spend the night at my place. Next morning, the police raided my residence but couldn’t find me. I escaped to Delhi in a truck and sent a telex message to the newspaper office asking for advice. Pat came the reply, “Editor wants you to stick to your guns”. It was an order to get arrested.

    My wife was furious. Ignoring my pleas, she went to meet the editor at his residence. He refused to see her but his wife asked her to persuade me to surrender to the police immediately lest the editor was made to suffer for “hiding” me. “My husband is unwell and old. He wouldn’t survive a jail term. Your husband is young and sturdy, he can withstand prison hardships,” is how the editor’s wife put it. My wife was shocked but not I. I knew my editor had a golden pen but feet of clay. He wrote stinging editorials against Mrs Gandhi after her election was invalidated by the Allahabad High Court but changed track after the imposition of Emergency and wrote that she was “steel-willed” and had “saved the nation from disruptive elements.”

    After my arrest under MISA, the newspaper ordered the disconnection of the telephone at my residence and released my salary for the period I was under illegal detention only after Mrs Gandhi lost the election. This was how a newspaper run by a public trust behaved during the Emergency. The mighty of the media shamelessly surrendered before the dictator. This is not to say that a few journalists did not fail to wage a sustained battle against the Emergency and press censorship.

    I had established contacts with the leaders of the underground movement before I went back home to enable the police to arrest me. These contacts were maintained throughout the Emergency with the help of my six-year-old daughter — Shuchita — who would smuggle into the jail underground literature during my family’s fortnightly meetings with me in Mahendergarh Sub-Jail. Throughout my period of incarceration I received information about the government excesses, public outrage and underground activities. Thanks to my daughter, who was nick-named “smuggler” by the inmates, we also sent out articles and commentaries on the Emergency which were carried in the weekly, Darpan, which was clandestinely printed and circulated throughout Haryana by the underground.

    Immediately after I was arrested under MISA, I was served with a notice informing me of the “grounds” of my detention. The only reason advanced by the government was that on the afternoon of June 23, 1975, I had addressed a secret meeting of youth in the compound of a local college in which I provoked them to resort to violence to throw out the government. I decided to challenge the grounds to expose the official lies. I wrote back that on that particular day I was on a professional visit to Karnal to do a story, had had lunch with the Deputy Commissioner at his residence and had filed my story from the office of a local paper called Karnal Telegraph in the evening. All these facts were verifiable. Within a fortnight, the jailer told me he had received my release orders. As co-prisoners gathered to give me a send-off, the jailer confided in me that a police officer was waiting outside to re-arrest me under a new warrant under MISA. The Emergency regime had since amended the Law and there was no requirement to provide grounds of detention to persons arrested under MISA.

    I had a rather busy schedule during my prison days. I read some 300 books, kept a diary and exercised for about two hours daily, besides listening to BBC, VOI, Radio Moscow and AIR on my transistor. For some months, with the help of a co-prisoner, I brought out a tri-weekly, bi-lingual wall paper. It became popular as it carried news gathered from various radio stations, commentaries on the happenings in the country and juicy news about the incidents inside the jail.

    The inmates enjoyed the sharp criticism of the Emergency regime but a former MP took serious objection to a report in the paper that he had violated a norm by clandestinely eating mangoes without sharing them with other inmates. He made such a hue and cry, that we decided to stop bringing out the newspaper. So much for the commitment to Press freedom by the same people who oozed opposition to press censorship imposed by the Emergency regime.
     

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