Freedoms now
SUNIL KHILNANI
IN India today, freedom is challenged both by the state and by civil society. In the first instance, the state has expanded the claims of security in response to the very real fact of terrorism. Individual liberty, the justificatory argument here runs, must be ‘balanced’ against national security – though what exactly that balance might mean, who is hurt by it, and what results it actually secures, are all left unspecified. The second set of threats to our freedoms flow from what one might call a ‘democratization of offence’ across the span of our society: every group now asserts its privilege to be offended, and the right thereby to impose restrictions on the forms of free expression that it finds offensive.
A word like ‘freedom’ or ‘liberty’ (I shall use them interchangeably) contains worlds of compacted meaning. If one looks just within the Western European tradition, Isaiah Berlin noted the existence of at least two hundred senses of the word.
1 But in India’s current circumstances, it is important to insist upon the most basic meaning of freedom – the liberty to say what one thinks, to live as one chooses, so long as one is not limiting the life or liberty of others. This may be a minimalist understanding, relative to the more elaborate specifications philosophers have recently urged upon us.2 But it is a fundamental one, and we need to guard it as such. For a variety of reasons – historical, political – this basic meaning of liberty as non-interference, negative liberty as it is sometimes called, remains weakly rooted in India.It was the encounter with the ideas of liberal and enlightenment Europe, as well as the weight of British colonial power, that first instigated Indian reflections on freedom as a worldly, social possibility. During the brief ‘liberal age’ of Indian thought in the nineteenth century, thinkers like Ram Mohan Roy were clear about the values they saw as necessary for individual freedom: a free press, jury trials, elections, private property rights, free trade, and freedom of religious belief. Freedom was understood as the absence of coercion or interference in the life-plans of an individual – a recognizably Millian conception of liberty – where such coercion or interference was seen as coming from, variously, the powers of the state, the weight of tradition, or the force of majoritarian opinion.
3But the liberal understanding of liberty in India soon gave way to anti- or counter-liberal ideas. Some of these ideas derived from European critiques of liberalism: first Hegelian and then socialist anti-individualism, perspectives which sought to lay out richer, positive conceptions of human freedom. For Indians, the space for liberal ideas, and for liberal conceptions of freedom, was further constricted because liberalism came to be associated with the colonial state. Even as it ruled over Indians, that state claimed to do so in the name of liberal ideals. It was only natural that those who opposed the colonial state should feel obliged to repudiate extant liberal ideals – and search for home-grown ones instead.
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he resulting conceptions of freedom were peculiarly emasculated when it came to the political liberties of the individual. Freedom came to be understood as a condition independent of the social and political realms. Gandhi, for instance, challenged the western association of freedom with the institutions of representative democracy and the market. Swaraj, for Gandhi, was a condition of the self, an internal relationship: freedom was, first and last, self-rule and self-mastery, not a condition within society or politics. So too for Tagore freedom was in effect a psychological condition – the absence of fear, where this was understood as a state of mind rather than as enjoining (as it did in, say, Hobbes’s account) a theory of state sovereignty as the condition for extracting fear from human relationships. For Gandhi as for Tagore, freedom required escape from the realms of necessity represented by society and politics. The opacity of the social, the obduracy of the political, pushed the location of freedom inwards, into the government of the self.
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et even so a conception of freedom associated with the state did emerge: the state was indeed seen as the vehicle for the attainment of freedom. The state, now controlled by Indians, would serve as the instrument to enable individuals to escape the realm of necessity, as embodied by the particularisms of society and the market. The state too would, in paternalistic fashion, calibrate the degree of freedom and dispense it as it saw fit. Given India’s dense ecology of rival beliefs, where each constituent was liable to take – and to give – offence and injury, political authority had to act as a protective, paternalist power. The excitable irrationalities of the Indian mind and its beliefs, it was held, required the state to regulate freedom, and not to ever entrust its exercise entirely to its wards.Freedom was thus either collapsed into the self, or identified with the state and its regulations. In both cases, the hope was somehow to de-politicize it. Freedom as a dimension of the social and political worlds, the world we inhabit, as a quality and principle of relations between human beings free to exercise choice, was either deemed illusory, or feared as potentially incendiary and morally dangerous.
The idea of liberty as unimpeded choice – in expression, or form of life – is at once a powerful and vulnerable idea. What has propelled this idea into modern political imaginations across the world, India included, are two closely linked features of the modern world: the spread of the political model of representative democracy, and the economic model of the market. Each of these models gave centrality to the value of liberty, specified in terms of individual choice (though, of course, choice in the political and economic realms can hardly be equated, and have very different consequences).
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he models of representative democracy and the market have both expanded the scope of choice. But neither is able to muster anything very compelling or decisive to say about what the expansion of the domain of choice is actually for – what, in other words, is the purpose of a life lived as a sequence of choices? Both of the engines driving the expansion of modern freedom – freedom as choice – have little to say about the ends of freedom. Indeed, the most sophisticated defenders of modern liberty have argued for this absence of any ‘positive’ specification of freedom’s purpose as exactly its strong point: it is modern freedom’s agnosticism about the ends of life that makes it a universalizable value. But this leaves such a conception of freedom open to at least two suspicions: that it is superficial, corroding social meanings, atomizing community into self-interested individualists.Such suspicions certainly came to be strongly voiced in India. They continue to have their proponents today – at either end of the political spectrum. On the one hand, there are those who draw on religious and cultural claims in order to restrict the scope and exercise of choice in social and political matters. Thus, organizations set themselves up as ‘custodians of Indian culture’ (think of the pronouncements of a group like the Ram Sene). At the other end of the political spectrum, we can find a parallel intellectual scepticism, in this case about the workings of the market – seen as a usurper of real freedom. Arundhati Roy can thus lament that ‘"freedom" has come to mean "choice". It has less to do with the human spirit than with different brands of deodorant.’
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he decades before 1947 produced a rich language of freedom – but for the most part this was conceived of as a collective freedom from colonial rule. There were limited efforts to imagine a society in which personal freedoms might have priority. With independence in 1947, the poetic imagination that inspired the quest for freedom was transformed into the prose of nation-building, of democracy, elections and rights. Importantly however, no Bill of Rights for Indians was proclaimed. Freedoms were not positively affirmed or given priority over any political order. Rather, liberties were ensconced and sub-claused within the articles of the Constitution, specified negatively (the ‘seven’ freedoms set out in Article 19 and its various parts, and in Article 21). Remedies were provided against their infringement, and the courts were charged with their protection.Hedged with limits and caveats, no sooner were these freedoms announced that they were subject to political gerrymandering – beginning with the First Amendment’s softening of the right to property, and the creation of the constitutionally self-anaesthetizing Ninth Schedule. The state was also given wide discretionary powers to restrict the very freedoms it claimed to assign its citizens: on the grounds of ‘compelling state interest’ (war and emergencies, threats of violence and public disorder), and of ‘public morality’.
The history of freedom in India – understood as the history of efforts to expand the scope of personal expression and choice – over the subsequent six decades can be divided into three broad phases of struggle over rights. In the first, from the 1950s to 1970s, the individual right to property was perhaps the core issue disputed in the courts and in political life. The second phase, from the 1970s to 1980s, saw battles over basic civil and political liberties. Undermined during Emergency, these liberties were reasserted in its aftermath, and a more expansive jurisprudence established, centred on a conception of the right to livelihood as a basic freedom.
From the 1990s to present, the debates have centred over rights to equality (see Yogendra Yadav’s article in this issue) – in terms of collective identities of caste and gender; and more recently, rights to freedom of expression as against the claims of religious and culture identities to ‘respect’ and protection against ‘offence’. Across these three phases, one continuous line of contention was the expanding presence of state powers, inherited from the colonial regime, to constrain personal liberties through preventive detention, and the use of a wide variety of restrictions based on what were defined as ‘anti-national’ and ‘anti-state’ actions.
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oday, in the wake of recent terrorist attacks in Jaipur, Bangalore, Ahmedabad, Assam, Delhi and Mumbai, the restriction of personal liberties has become less a matter of contention, and increasingly a point of consensus. Clearly, the Indian state and many of its citizens are now the targets of chronic violence. Terrorism is only one of its forms – others include left-wing armed insurgencies as well as movements for greater autonomy and self-determination. These forms of violence will be with us for some time to come. Dealing with that fact poses some fundamental questions for us concerning our freedoms.
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hould we prepare ourselves to further constrain our liberties in order to uphold the fundamental liberty to life? Constitutionally, the Indian state has strong powers of response to extra-political challenges to its authority. These are embodied in the Emergency and police powers inherited from the colonial regime. Both, we know from experience, are liable to misuse.5 The Indian state also possesses numerous other legal powers, highly discretionary and subject to light scrutiny, in order to respond to violence and its threat. These include anti-terrorism laws, as well as many internal security acts and provisions that deal with specific situations and regions, ‘disturbed areas’ like Kashmir and the North East states, and which as such are not uniformly applicable across the Union. It is these laws which are sometimes invoked to target particular individuals – as happened in the case of Binayak Sen, incarcerated for over two years and released on bail only recently.Precisely because they do not always affect all Indians in proportionate ways, the expansion of state powers and the concomitant restriction in personal freedoms has provoked little public debate at the national level. There is a marked disproportion between the relative disinterest of public opinion, and the vocal reactions of the human rights community.
The terrorist attacks over the past years, culminating in the multiple assault on Mumbai in November 2008 have created a deepening acquiescence in restrictions on liberties. Such restrictions tend to be justified through the metaphor of ‘balance’. We need, however, to put some pressure on this image. What exactly are we measuring on these scales? How are we assessing the trade-offs between risks and liberties, and who is making these trade-offs for us? Should the claims of national utility gain precedence over fundamental individual freedoms, and do utility and rights have a common currency of measure? If, on the other hand, we are facing a conflict between rival individual rights – the right to liberty as opposed to the right not to be a victim of terrorism – then surely we need a much more elaborated, nuanced and non-utilitarian language through which to consider the rights of individuals.
6 We only need to pose such basic questions to see how removed we are from any serious engagement with the problem – and how the image of ‘balancing’ can, in the name of reasonableness, serve to stifle reflection.
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nvariably the restriction of liberties falls on very specific regions, social groups, and types of individuals. Whatever the virtues or demerits of stereotyping and profiling, it is now a basic tool used by all modern states in pursuit of security. But this adds another complicating factor to the issue of ‘balancing’, since what has to be balanced is not only security against liberty, but the issue of whether the systematic curtailment of liberties should be borne disproportionately by a few in order to assure the security of most.7 At stake here is of course the issue of natural justice; but, and even more importantly from the viewpoint of national security, there is also a question of prudential politics. Does it make sense, from the viewpoint of securing future social peace, to target the liberties of particular groups defined by religion, region or ethnicity?
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elated to this is the more general question of the actual efficacy of the expansion of state powers at the expense of personal liberties. In the absence of any clear evidence that such measures do in fact increase security and reduce risks, it might appear that such measures are little more than placebos – a way of bestowing a feeling of having accomplished something during a period of trauma.8 We know that our intelligence agencies have a history of being less than competent, and a remarkable ability to work at cross-purposes to one another. We also know that anti-terrorism laws have resulted in very few convictions, and have mainly provided opportunities to expand the uses of preventive detention – or worse.9 It is, precisely, then the hard-headed and realist question to ask whether in fact restrictions in liberty do enhance security.The fact is, we don’t really know. And perhaps the main reason why we don’t has to do with the pervasive air of secrecy that surrounds how our state manages security. There is virtually no regular parliamentary scrutiny of the subject, let alone any reasoned and informed public debate about it. State secrecy, the political scientist Rahul Sagar has recently argued,
10 is a major obstacle to any grounded evaluation of risks and trade-offs between the requirements of security and the claims of liberty. Evidently, every state has the legitimate power to judge what information it makes public and what it keeps secret: the goal is not to undermine that power, but to make it accountable, and to establish criteria for evaluating state judgements and actions over secrecy.
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t a minimum, we need to be in a position to at least retrospectively evaluate state judgements about risk, threats, and the actions necessary to deal with them. To begin with this would require studying historical episodes through analysis of the relevant documents – which must be made available through observed procedures of declassification. It’s important to insist that such analysis is not mere academic indulgence. It is a vital tool both to improving the state’s performance in this regard (there are always lessons to be learned) and to developing a critical standard. We need to be able to examine whether we have grounds to trust the state when in comes to assessing matters of security – and to gain a fine-grained picture of which institutions have proven to be more or less trustworthy.Of course, retrospective analysis cannot directly help us in judging in any present or future circumstance exactly what weight we should give to security as against liberty. But from the past record of our state, we can draw conclusions about how much trust it is rational to repose in the state’s decisions and trade-offs. And we can be better equipped to participate in the debates as responsible citizens – to ask, for instance, whether the wide security powers deployed by in the state, extending now over six decades, in areas like Kashmir and the North East have enhanced our security or diminished it.
The Indian state must be able to act against real challenges. But it must also avoid inflationary rhetoric – that targets particular groups as ‘enemies of the state’. Its responses must be proportionate, and within the law – where that law is the result of deliberation and consideration, not hasty ordinances.
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he coercive powers of state are always a potential threat to personal freedoms. But so too is civil society itself.The most basic of freedom’s plural meanings is freedom from non-interference in the expression of ideas and beliefs, and in the pursuit of life-choices, insofar as these do not interfere with others. Yet over the past two decades, we have seen an escalation in attacks on the freedom of artistic, scholarly and journalistic expression. Some of India’s most distinguished minds, imaginations and public figures have been the targets. M.F. Husain, Deepa Mehta, Taslima Nasreen, Ketan Mehta, Arundhati Roy, Romila Thapar, Ashis Nandy, Anand Patwardhan, Rakesh Sharma, the young Baroda art student Chandra Mohan, Shilpa Shetty, Nandita Sen, Aamir Khan, Mallika Sarabhai, the American historian James Laine, S.Z.H. Jafri, Mallika Sherawat, Khushboo, Vijay Tendulkar, Habib Tanvir, D.N. Jha, Mahesh Bhatt, Shabana Azmi, Y.D. Phadke, Salman Rushdie, P.V. Narayanna, Vikram Seth.
The roll call of those attacked, threatened, intimidated, in what we like to celebrate as our ‘vibrant democracy’, is deeply sobering. Add to this attacks on social practices and lifestyles: women in bars, couples in public, those choosing to mark St. Valentine’s day, and those exercising marriage or sexual choices. Cinema halls showing certain films have been bombed, works of art and galleries attacked, newspaper and TV offices trashed (Star News, Dinakaraan), the Bhandarkar Institute in Pune vandalised.
The many attackers against those exercising their constitutionally-provided personal liberties are united by their insistence that such liberties of expression must be curbed if at all they can be deemed to cause offence – in particular to religious and moral beliefs. A vigilante morality has emerged – one that feels free to violently assault whatever it disapproves.
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he assaults are in part attributable to class resentment at newly risen economic groups experimenting with so-called lifestyles. But the violence is also an expression of anxiety over change, in particular over the changing role of women – which carries implications for the family, so often the last bastion against the expansion of personal freedoms. The attacks also, and perhaps above all, draw on the infinite Indian capacity for political opportunism. The ability to discover offence, to set oneself up to harass such ‘offenders’, and to mobilize popular fury against them, have become skills essential to mustering support for political purposes.This places a particular burden of responsibility on the courts, as the most important defender of liberty of expression and personal choice. While there have been some important exceptions – among the most notable is the recent Delhi High Court judgement in the Naz Foundation case, which has struck down Section 377 of the Indian Penal Code – the overall record of the courts has been dismaying. The courts have been too ready to appear to minister balm to the hurting sentiments of any group that thrusts itself forward – banning, censoring, and even interfering in the content of artistic and scholarly work. The rationale generally offered is that such measures are necessary to preserve public order. But the irony of course is precisely that public disorder is provoked in order to pressure courts to ban and censor. Cause and effect are neatly reversed.
The courts’ behaviour in this regard accords with a long standing solicitousness on their part on matters of religious sensitivity. This habit is now seriously undermining our most fundamental freedom – to think, live and define ourselves as we choose, and to honour the right of others to do the same. Article 21 of our Constitution – ‘No person shall be deprived of his life or personal liberty except according to procedure established by law’ – is the cornerstone of our personal liberty. It is this article, not those pertaining to equality or other values, that the courts should rely on to build an expansive jurisprudence in favour of personal freedom for all Indians.
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hilosophers today urge us to embrace richer conceptions of freedom – to move from a view of freedom as non-interference, or even from one that sees it as lack of dependence, to a view of freedom as the possession of capabilities.11 These are important enlargements of our conception of freedom – and they introduce claims of justice, equality, and voice into discussions of freedom. Yet, in times such as ours, it is equally important not forget and jeopardize the most basic definition of freedom: non-interference in activities that do not endanger the life and liberty of our fellow citizens. It is a minimal definition – but a fundamental one.In the years ahead, active contestation over our freedoms will be a steady feature of our public life. We are in the midst of an era of massive social change as we seek to expand, shape, specify, the contours of an open society: a society where free inquiry, criticism, experiment, will constantly challenge received knowledge, inherited practices, and social taboos. Nothing of this kind, on this scale, has ever been attempted in previous human history.
The question is: what form will such contestation take, and what resources will the protagonists bring to bear? Those who wish to advance the claims of freedom, as well as those who wish to constrain and contain such claims both share one responsibility: they must advance reasons to and for one another, seek to convince one another. This will require arguments to be offered, not assertions and declarations; it will require information, analysis, a more careful regard to consequences, and above all the statement of a clear vision about why we value the individual, and her or his capacity to choose.
Can we learn to live in a world in which our beliefs are offended, challenged, sometimes even mocked? Can we agree on what level of risk is acceptable in order to keep our freedoms in good repair? To live in an open society is always to be open to the possibility that our most deeply held beliefs will be challenged. That is what it means to live in a free society. Freedom is not a solace or a security: it is a psychically strenuous project – and, often, a physically perilous one. To acknowledge and accept risks, argue for them, instead of pretending as in the old days that we can’t be entirely trusted in our choices – that would be a start.
Footnotes:
1. Isaiah Berlin, (1958), ‘Two Concepts of Liberty’, in Four Essays on Liberty, Oxford University Press, Oxford, 1969.
2. Amartya Sen, The Idea of Justice, Allen Lane, London, 2009; Quentin Skinner, Hobbes and Republican Liberty, Cambridge University Press, Cambridge, 2008.
3. C.A. Bayly, ‘Rammohan Roy and the Advent of Constitutional Liberalism in India, 1800-1830’, Modern Intellectual History 4(1), 2006, 1-17.
4. Arundhati Roy, ‘Democracy’s Failing Light’, Outlook, 13 July 2009, 16-26.
5. Human Rights Watch, 2009, Broken System: Dysfunction, Abuse and Impunity in the Indian Police. Available at: http://www.hrw.org/en/reports/2009/08/04/broken-system-0
6. For an illuminating analysis of these issues, see Jeremy Waldron, ‘Security and Liberty: The Image of Balance’, Journal of Political Philosophy 11(2), 2003, 191-210. See also, Conor Gearty, ‘Terrorism and Human Rights’, Government and Opposition 42(3), 2007, 340-362.
7. Ibid.
8. Ibid.
9. Anil Kalhan, ‘Colonial Continuites: Human Rights, Terrorism and Security Laws in India’, Columbia Journal of Asian Law, 2006, 93. Also see, Grace Pelly and Jai Singh, State Terrorism: Torture, Extra-Judicial Killings and Forced Disappearances in India, Report of the Independent People’s Tribunal, New Delhi, 2009.
10. Rahul Sagar, ‘Who Holds the Balance? A Missing Detail in the Debate over Balancing Security and Liberty’, Polity 41(2), 2009, 166-188.
11. Quentin Skinner, 2008; Amartya Sen, 2009; op cit.