The Telegraph
Thursday , September 4 , 2014
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- The State is threatening certain basic freedoms of civil society

There is an inherent tendency within every State to maximize its powers and to extend its control over as many areas of human activity as possible. This propensity is most pronounced in non-democratic and totalitarian States, but even democratic polities are not free from such maximalist tendencies on the part of the State. It could be argued that individual liberties and freedoms cherished within the institutions of civil society are in perpetual conflict with the power of the State. In a democracy an attempt is made to strike a balance by reining in the powers of the State. This is always an ongoing process and never an easy one.

In India, fundamental liberties were guaranteed by the Constitution of India. In spite of such guarantees, there have been periods of time and occasions when basic freedoms have been threatened or brazenly violated. The most notorious of such violations was, of course, the Emergency, which was imposed by Indira Gandhi in June 1975. It lasted for only 18 months but left permanent scars on India’s body politic. It needs to be emphasized that the Emergency only extended internally a condition that existed externally. Ever since the Sino-Indian war, Indians had lived under conditions defined as an “external emergency”. Moreover, in certain parts of India — West Bengal in the late 1960s and early 1970s comes immediately to mind — under the alibi of preserving law and order, democratic liberties and the rule of law were brutally suppressed.

In the battle against the Emergency, and it was a very hard fought one, two institutions emerged with substantive gains. One was the judiciary and the other were the media (in 1975, this meant the print media). Indira Gandhi’s regime had tried to undermine the independence of the judiciary in a number of ways. First, by appointing judges who would be no more than rubber stamps of the government. The appointment of A.N. Ray as the Chief Justice in 1973, superseding many judges, was the most glaring example of this kind of search for yes men. Second was the propagation and implementation of the idea of a “committed judiciary”. The term, “committed”, referred to commitment to a particular kind of “progressive” ideology then being championed by Indira Gandhi and her principal advisor, P.N. Haksar. This implied that the judiciary would no longer work to uphold the rule of law but to further a particular kind of ideology and a particular project of social engineering. The culmination of this practice of interfering in the judicial process was the subversion of the judiciary in the course of the Emergency.

Another, if more obvious, victim of the Emergency were the media, then largely consisting of newspapers and magazines. As is well known, Indira Gandhi imposed censorship and arrested and harassed important journalists and editors. Only those who did her bidding were spared.

The defeat of Indira Gandhi in the elections that followed the lifting of the Emergency was perceived as a moment of liberation by both the media and the judiciary. It was seen as the return of the freedom of speech and expression and a return of the rule of law. It would appear that these hard-won liberties are again under threat because of the maximalist propensities of the Indian State.

Attacks on the freedom of the press are happening under a new-fangled euphemism: regulation. This word is no more than an insidious attempt to control the press. The cry, and this is not from any one particular party but from practically the entire political class, is that the media are running amok and should be reined in. The State should establish mechanisms to regulate the media. For “running amok’’, read the press attacks the political class and exposes its many misdeeds. There is little or no recognition that allowing the State to intrude into how the media function is the thin end of the proverbial wedge. Today’s regulation is tomorrow’s control.

Without being self-congratulatory, it should highlighted that the Indian media are actually responsible and they have their own instruments of self-regulation. There are occasional lapses. But lapses cannot be the pre-conditions for regulation. The proponents of regulation also do not pay sufficient heed to assaults on the media and the freedom of expression. In West Bengal alone there have been many instances of such attacks, including the beating up of journalists. There are other forms of attack: denouncing of any criticism as being part of a major conspiracy; withdrawal of government advertisements and subscriptions of newspapers and periodicals that are critical of the government; and the spreading of canards about leading media personalities.

It would be simplistic to restrict such attacks to the personal whims and predilections of any one particular political leader. A prevailing climate of opinion allows political leaders to give their whims free play. The climate of opinion fits in cosily with the ambitions of the State to be all-powerful and domineering. All States are driven by the desire for dominance and this nurtures the illiberal traits of some political personalities.

The media and the freedom of expression are not alone in feeling the State breathing down their necks. The judiciary, which, together with the media, had felt liberated after the Emergency, has also suffered from the interfering arm of the State. The recent controversy of how judges should be appointed is an example of the State trying to assert its authority over the independence and autonomy of the judiciary. It is nobody’s argument that the judiciary should be totally unaccountable but there is a thin and a blurred line that separates the government having a say in the appointment of judges and the government actually appointing the judges. A related issue concerns reports of governments or powerful ministers or even the thriving intelligence community leaning on judges to ensure a judgment in a particular direction. The flipside of this is reports about some judges allegedly giving judgments favouring the government to secure their promotion/future. There are many other facets of how the independence of the judiciary is being undermined.

To repeat the point made when discussing the media, there is the need to make a distinction between individuals (their bona fides and their misdeeds) and a prevailing climate of opinion that permits, nay facilitates, the overbearing power of the State. This drive towards domination on the part of the State is evident in the repeated flouting of the rule of law, as witnessed in the refusal to grant bail (witness Tarun Tejpal and innumerable other under-trial prisoners); in the imposition of the law of sedition (witness Arundhati Roy and Binayak Sen); in its deliberate turning of a blind eye to encounter killings; and in the brutal suppression of political opponents (for example, in Jammu and Kashmir and in Manipur).

India is supposed to have entered the era of liberalization in 1991. A crucial feature — many would argue, the most important feature — of liberalization is the withdrawal of the frontiers of the State. Some areas of the economy have been freed from the licence and permit regime that the State had imposed pre-1991 but large arcs of civil society continue to suffer from the State’s interference. Two victims of this are freedom of expression and the judiciary. There may be other victims caught unawares.