In This Democracy, We Must Not Distrust or Suspect Dissent, or Disagree with it

By The Caravan | 24 April 2016

Born in 1938 in Rajkot, in Saurashtra, Gujarat, Upendra Baxi’s legal career began at the Government Law College—where he once inadvertently complained to a librarian about BR Ambedkar’s notes in library books. He then received masters’ degrees from the University of Bombay and the University of California at Berkeley. A prolific jurist and a renowned academic, he began his teaching career at the Sydney Law School, in 1969. Baxi went on to serve as the Professor of Law at Delhi University from 1973 to 1995, as well as its Vice Chancellor between 1990 and 1994. He served as one of the foundational advisors for the National Law School University in Bangalore, and an honorary professor at the National Academy of Legal Studies and Research (NALSAR) at Hyderabad. Baxi retired the emeritus professor of law at the University of Warwick. 

For over five decades, Baxi has been writing on issues surrounding law, social justice, sociology, constitutionalism and human rights—themes that have been essential to his academic work. Baxi’s writings include books such as Inconvenient Forum and Convenient Tragedy: The Bhopal Case (1986), The Rights of Subordinated Peoples (1994), and The Future of Human Rights (2002), as well as over 250 articles in reputed journals and publications. He has advised the Indian Law Commission and United Nation’s Commission on the Prevention of Crime and Treatment of Prisoners. He has contributed to volumes such as the Oxford Encyclopaedia of Human Rights (2009), the Blackwell Companion to Post Colonial Studies (2009), and the Oxford Handbook of Indian Constitutional Law (2015). He served on the editorial team of international law journals such as Law and Society Review and The Common Law Review. His writings have been cited by Indian high courts, the Supreme Court of India, and the International Court of Justice. Few scholars in India have contributed to legal thought as much Baxi. “But when [my granddaughter] was 11, she said to me, ‘Daddy, you don’t exist,’” Baxi said. “I said, ‘Here I am, alive and kicking, why do you say I am not existing?’ And she said I don’t exist because I am not on Facebook.”

In February 2016, soon after students from the Jawaharlal University in Delhi were arrested and charged with sedition, The Caravan, met with Baxi at his residence. They discussed sedition, nationalism, and the constitutional and legal developments of these concepts in India. Published below is an excerpt from the interview.  

This conversation is a part of ‘Notes on Nationalism,’ a series being published by The Caravan that considers various aspects of the public discourse around sedition, nationalism, and Indian identity. You can read other pieces in this series here, here and here

The Caravan: As both a law professor as well as a pre-eminent law scholar of our times, you have a double advantage to help us make sense of the debate and the recent political developments around sedition. Could you put in perspective the recent incarceration of young students on sedition charges?

Upendra Baxi: I plead not guilty to the accusation of being “pre-eminent.” On the eve of becoming the Vice Chancellor of the South Gujarat University, in the early 80s, Justice Krishna Iyer wrote to me saying that I had become now an eminent person, and paraphrased George Bernard Shaw’s dictum—“the more eminent a person is, the more things she has done to be ashamed of!” (Laughs)

I can speak as an informed citizen, maybe—a citizen who has some constitutional background. There seem to have been a large number of enquiries. The university [JNU] had its own. The Supreme Court intervened on the issue of the lawyers’ alleged misbehaviour, which was all broadcast on television channels and commented on by print and electronic media. That was the second enquiry. The third enquiry was opened up by the Bar Council on 18 February 2016, when the lawyers beat up the press persons. The Press Council also made a call for exercising civility. I heard that the NHRC [National Human Rights Commission] also ordered an enquiry. The then-Commissioner of Police, [BS] Bassi was heard saying that he had all the proof, and that one can reasonably expect to get all charges against the student leader. He said he has some protective department personnel present in Court. So, the police probably has an enquiry of its own. At the end of the day, perhaps sincere constitutional citizens will figure it all out.

It is an open season for enquiries, but whether enquiries are friendly to justice is another matter. It’s what is called in social sciences as an “unintended effect.” The more the enquiries, the varied and even less the effects—these presumably unintended effects constitute one of the paradoxes of democratic India.

As a citizen, I am very confused on facts, but the facts will emerge eventually. But whether the truth emerges, that is another matter. I don’t like, as some people do, a monopoly over truth—with a capital “T.” In a sense, everybody is holding enquiries. One thing I feel very solemnly is that, if indeed some of these statements were made, such as “destroy the nation,” “barbadi Bharat,” and so on—they ought not to have been made. Anything that borders on condemnation of the national integrity and unity as such should be severely punished. That much is clear to me: whether they [the accused] said that, or who said what, and how, and when, will come out as a result of these enquiries. If, as a matter of fact, somebody did say it, then it is very bad and indeed disgraceful, but it doesn’t give the right for moral vigilantism. It doesn’t give anyone any right to condemn a person even before the person is heard. Our legal system is based on natural justice, right or wrong. It is based on full evidence. It is based on presumed innocence of the person beyond reasonable doubt, so it is the function of courts to hold somebody guilty, or not. Lawyers should not become judges, nor should media persons, nor should Indian citizens. Moral vigilantism and violence is below civilized standards of constitutionally prescribed conduct and behaviour. No matter whatever be the short term gains, of this moral vigilantism or violence, are per se bad. What we must have is a rational dialogue, tolerant of divergence and plurality.

I am worried about all threats to reasonable exercise of free speech, press, and dissent. In the eighties, human rights activists noticed something called SLAPPS [Strategic Lawsuits Against Public Participation], a multinational company strategy for suing performances of public participation. This was widely used; those who dare criticise the companies get sued both for injunction and heavy damages. SLAPPS was discussed in an American book, Getting Sued for Speaking Out, and an English narrative of the McLibel trial [a 1990s case in the United Kingdom against the multinational McDonalds, which resulted in the court effectively ruling that libel laws oppress the freedom of speech and expression]. Getting an injunction—although damages are rarely awarded in the final result against anybody who says that a product is unsafe, or risky to the point of posing a danger to health or environment—is used as a weapon against activism.

From SLAPPS, we seem to have moved to what [the senior advocate] Rajiv Dhavan aptly calls KICKS—K[C]riminal Intimidatory Coercive Knockout Strategies. Or simply, using criminal law for unlawful intimidation or action against a dissenting other. Our Supreme Court has held—wrongly, in my opinion—that the colonial law of sedition is constitutional, but rightly that only speech which carries incitement to commit an offence or violence may constitute a reasonable restriction under Article 19(2) of the Indian Constitution. It has reiterated that dissent and disagreement is the lifeblood of democratic ordering. To say that someone should love a government—technically, sedition is anything that has the tendency to disaffect people from a lawful government—goes against the right of people to dissent or to disagree. Such a law—geared to the “manufacturing of affection” as Gandhiji called it as early as the1922 Ahmedabad trial—is distinctly colonial in origin and operation. This old colonial law as the means of production of a loyal subject has outlived its utility. And I am not alone in saying this. Many progressive voices—including justices, some of whom decided sedition cases—have said so. Successive governments have, however, urged the contrary view but, I am afraid, never carefully and fully considered making a new law in tune with modern day requirements prescribing offences against the integrity and unity of the nation, which comply with constitutional requirements and changeful social ethos.

I think a number of legal authorities, too, have said this section of the penal code is colonial and unconstitutional. The Supreme Court should have cut it down but it did not. But as late as last year, it said held, in effect, that an “overbroad” restriction on freedom of speech is not constitutionally justified. What we need is a reasonable restriction that can be laid on the grounds of public order or protecting the sovereignty of the country, but the Supreme Court has clearly stated that Article 19 gives individual citizens as well as the media the right to argue a position, for or against, and the right to dissent against the existing establishment. These actions are not sedition. They have a right. However, proven incitement—incite somebody to disaffection by violent action, as you know—that is sedition. The law is clear as far as the Supreme Court has made it, and binding on all courts under Article141 of the Constitution.

Yet, sedition as an offence continues and is used frequently by various governments. Most likely, courts are not likely to find these actions impermissibly seditious.

In fact, on the issue of the impact of the Supreme Court decisions, there is no research in India. Some people say the foundational decision—Kedarnath [vs the state of Bihar, a 1962 case]—held only incitement to action that is violent or has such propensity, as an offence. Dissent is not an offence. Disagreement is not an offence. Obviously, 19(1) takes precedence over 19(2), which is a law that can provide reasonable restriction on free speech. But the important thing is that it is free speech to which these are exceptions.

Judicial law is very clear as to how the law has to be applied. Many people who face the charge of sedition are in actuality subjected to what I call the “fly now, pay later” rationality. “Fly now” means you can put a person behind bars. It takes several years for the hierarchy of courts to decide—from the district court to the High Court, and then eventually the Supreme Court.. What Justice Rohinton Nariman, speaking for the Court, did—a very important decision—to cut down Section 66A of the IT Act on the ground that it was overboard. There, the court reiterated earlier decisions. What is more, the court clearly approved the holding in the 2010 Khushboo case [the Supreme Court quashed criminal lawsuits of obscenity that were filed against the actor Khushboo for statements encouraging safe sex] which borrowed the concept that is prevalent in America: the concept of the marketplace of ideas. What justifies the freedom is circulation of ideas and opinions and what ultimately prevails is the provisional conclusion by the people as what the truth is—not with capital “T” but a small “t.” Therefore, there cannot be any gag orders or pre-censorship of the expression, and the Supreme Court of India adopted it in that case. The court reiterated that decision saying that, this is how they test freedom of expression consistent with marketplace of ideas, and it clearly ruled that restrictions cannot abrogate the right. Therefore, it must be reasonable and not vague or overbroad.

The Caravan: As a former vice chancellor of Delhi University, you are aware that there are practical dimensions to what debate is on a university campus. If a similar incident had occurred when you were vice chancellor, how do you think it should have been handled? What could have been done, and how?

UB: I became the vice chancellor in 1990. I was baptised by the fires and powers of Mandal [the Mandal Commission protests of 1990, in which thousands of people protested against the proposed Other Backward Classes reservations in government jobs]. At that time, VP Singh was the prime minister, and the Congress and the BJP [Bharatiya Janata Party] were probably interested in anti-Mandal legislation. My students, my teachers, karamcharis [workers] took different positions; Marxists took a different position. They were all illiterate about Mandal, as it turned out. Between 10 years of Mandal, they were only seven articles in [the journal] Economic and Political Weekly. The professor [and sociologist] IP Desai wrote one. Ghanshyam Shah, a political scientist, wrote one, and I wrote another. Nobody bothered to read these contributions, and more importantly, the Mandal Commission report was obliterated, almost from memory and counter memory.

But suddenly it all flared up. And I told everyone that we must at least read the report—what it says and does not. I also said that we must study all aspects of the theproblem before we take a position, and we must think hard on the privileged position we’re in, whether as teachers, students, or researchers on the campus. In a poor country, why are teachers paid so much? Now they are paid much more than what I was paid, they are paid in lakhs; my take-home salary as VC of a central university was but a fraction of salaries now paid to academics! In those days I believed, and I still believe, that your first duty in a university is to protect a freedom of speech. It is the only time in life that you argue against a position that others oppose; the only time the mind is free. Thereafter, after university, life catches on. The only time you can read write and think is when you are a student. And university and college teachers are paid as they are, for intangible services: reading, writing, thinking and speaking. Nothing more. All four of these involve freedom of speech. To voice my opinion, to be creative with my pen. As with media, as with journalism. These are valid professions to the extent that there is freedom. If you take away freedom, nothing is left. Just parrot what is handed out to you. We have to preach this and practice it.

As the vice chancellor, I acted on the principle of support to all groups and opinions in their non-violent exercise of freedom of speech and expression of any opinion. That is the right thing to do, to provide the ground for free expression of ideas. That is the job of all regulators inside the government. Outside the government as well, everybody must support this. If somebody has said something very deeply offensive to the constitutional idea of India, one must reasonably regulate this, and must non-violently fight it. You must not fight it by violating the idea of justice, but by telling alternate stories of national pride, the histories of what makes a nation great. In this democracy, we must not distrust or suspect dissent, or disagree with it, merely because we have a different opinion.

The great poet P.B. Shelly wrote in his An Ode to West Wind, “Oh! lift me as a wave, a leaf, a cloud! I fall upon the thorns of life! I bleed!” A legislative power may impose restrictions on free speech when only it must. It should not stand on the dreams of every person to say or feel what he or she wants. And that, in one word, is democracy. My views and your views can’t be the same. There should be as few restrictions on freedom of speech as possible. The founder of utilitarianism—Jeremy Bentham—said that all penal law is a series of evils, and therefore one must be must be very careful and solicitous of liberty of opinion in prescribing restrictions on free speech, movement, and association.

In and through dissent often one expresses a dream of an alternate social order. Look at the famous and haunting speech of Martin Luther King, where he envisioned a social order of complete equality, where black and white people shall live together in equal dignity and freedom. Look at Gandhiji who furthered the anonymous multitudes’ struggle for Swaraj [self-rule]. Look at Nelson Mandela whose “long walk to freedom” from racism and imperialism signified a new dream…Look at campaigns for equality and justice everywhere in the world, which insist on a policy platform insisting that no person is left behind.

Coming back to the question, the freedom of speech and the right to disagree and dissent is nearly sacrosanct. For the life of me, I do not think anybody that’s in market would think that there is anything flawed with the conception. Goods and services have to be shared with the consumers; freedom of speech essential to advertisement and other ways of prompting the market; so is the consumer’s right to speak.

TC: Is it accurate to say that, in today’s India, we are witnessing a clash between the set of values that the Constitution espouses, and the set suggested by the Constituent Assembly, such as the ideas around majoritarianism?

UB: It has always been there. It has been there since day one of the Constitution. For example, until today, the question has been: how far can the judges go in protecting, promoting, and proselytizing the basic human rights guaranteed by the Constitution and also the common law principles underlying it? In the first seventeen years of the Indian Constitution, there were 17 amendments. The first amendment was done when Constituent Assembly was acting itself as the Parliament. My good friend—I still remember—from whom I learnt a lot of my law and good life, Justice Hidayatullah (we used to call him Haddi) once said, “Ours is the only constitution that needs protection against itself!”

There is an ideological difference, as to who is the master, who has the last say on national affairs. Nehru always believed Parliament has the last word in the change of and in the Constitution. Look at Nehru’s Cabinet, everybody was worthy of being a prime minister: [Vallabhai] Patel, KM Munshi, Gobind Vallabh Pant, Jagjivan Ram, Maulana Azad, Rafi Ahamd Kidwai, and BR Ambedkar, for example. Yet, there are some far reaching 17 amendments in 14 years, not volubly protested.

As we all know, the Supreme Court asserted in the 1969 Golak Nath case that the fundamental rights in Part 111 may not be amended and in 1973, in Kesavananda, it said that Parliament can change all the constitutional provisions except the essential features of the basic structure of the Constitution. What the essential features are is for the Justices to describe and they have been doing it in cases following Kesavanada. From that decision to 2015, when the amendment concerning the National Judicial Commission was struck down, justices have been insisting that the power and process of judicial review is the basic structure of the Constitution and that by virtue of judicial review, they have the power to review the law as to essential features. Truth to say, justices have very rarely struck down amendments to the Constitution made by parliament. The few times they have done so is with grave constitutional anxiety and with very elaborately reasoned decisions. Despite reasons given for the rare action, the propaganda grows that Justices have usurped the power of Parliament. This is extremely unfortunate for the future of human rights and constitutional democracy.

True, justices have often made law. In the Vishakha decision [a public interest litigation filed by several women’s activist groups to ensure protection of fundamental rights for women in workplaces] the Court laid down a law on sexual harassment; the law so laid down was to operate till Parliament makes a suitable law, which it did, after the Verma Committee report and increased popular demand in 2013. This is but one example.

The court has also ruled that systemic governance corruption violates constitutional rights and this fight began very early with Antulay decisions and orders: Justice Lentin at the Bombay High court passed a cease and desist order. Antulay was a comparatively honest politician, at least because he received all the donations for the Indira Gandhi Pratisthan in cheques. I wrote a book called Liberty and Corruption. The theme was jurisprudence of corruption and corruption of jurisprudence. There were 37 or so proceedings; the Antulay case raised several crucial issues including systemic governance corruption, the ways of distinguishing the folklores versus facts of corruption, and the fundamental right to expeditious judicial trial. It’s still a good book I think! But since then, the Court has never looked back. And it even monitors systemic governance corruption. A new enforcement mechanism is SIT (Special Investigative Team) responsible to the Supreme Court. The SIT has now become a household word for people fighting corruption.

The power to do complete justice became a buzz word for the Supreme Court. Since then, this newly discovered and widely exercised Article 142 power, now reaches its culmination in the curative petition, a wholly new, and unparelled, judicial invention, which enables to set right, by a new hearing, mistakes that the Supreme Court itself may be so moved to acknowledge and rectify.

Since 1980, the Supreme Court had become, I’ll say, a co-governor of the nation. It makes laws. It makes a large number of policies. It invents structures of enforcement. It invents new jurisdictions, such as the epistolary jurisdiction (writing letters to justices)—a Biblical phrase were we to recall St Paul’s letters to the Corinthians. I coined the term; justices loved it and used it, innovated it further.

The power of doing complete justice spawns many a new jurisdiction. The justices are in fact co-governors of nation, despite the former Prime Minister Manmohan Singh saying Lakshman rekha [referring to a line, which originates in the Ramayana, when the Hindu god Ram’s brother, Lakshman, drew a line outside their hut which his sister-in-law Sita, was told not to cross]. In the kitchen, sometimes you introduce the Lakshman rekha, which is also the name of a pesticide—a chemical to remove all the cockroaches. (Laughter) The other Lakshman is Prince Lakshman. Sita crossed the Lakshman rekha and was then kidnapped by Ravana The former story celebrates the myth of “separation of powers,” whereas the Constitution only sanctions a division of functions and, of the second story, it is that transgression brings sorrow and should be avoided. But when can we say that justices transgress, especially when constitutional law (and indeed all law) is ceaseless judicial interpretation? The justices do not deny supremacy of Parliament to amend the constitution. They only ask that it follow the procedure laid down and not violate the basic structure with essential features responsible for imparting a secular, democratic, sovereign, constitutional India. The Supreme Court can only outline broad constitutional essential features; accordingly, the basic structure is how justices have the power of judicial review, which alone enables to say what the essential features are.

I call this tendency demosprudence. Demosprundetial constitutional leadership is democratic leadership just as legisprudence (the legislative rationality) is. We live under three prudences—demosprudence, legisprudence, and jurisprudence. Jurisprudence —we think we know it as the principles of legal interpretation.

When justices directly constitute and reconstitute people, they don’t practice jurisprudence, and follow the precedents. If they follow the precedent, they can’t do new things: they have to, as the gifted jurist Julius Stone wrote, “break the chains of precedent.” Or to vary the metaphor, and follow Nietzsche, “You must have chaos to give birth to a dancing star.”

This is what justices (of the Supreme Court and the High Courts) have achieved through the practices of SAL (social action litigation), which is usually wrongly referred to as PIL (public interest litigation). I have explained why in several of my writings; you can borrow labels but not history. SAL is our history and future, PIL is American constitutional history and future.

In SAL, justices not merely decide disputes, rather they pronounce on where a constitutional law and policy lie. They judicially invent new rights either as emanating from the existing ones, or as flowing from the constitution. They invent whole new jurisdictions, previously unknown even to the Supreme Court. They grant standing to litigate when other persons or people rights are affected. Thus the doors of courts are thrown open to all suffering people. The SAL takes people’s suffering seriously as a way of taking human rights seriously. The justices invent new enforcement structures and new remedies. They make policies or suggest new ones. They police federalism (to the extent of making the presidents rule a remote exception) and basic structure (even to the infrequent, even rare point of holding constitutional amendments and attendant laws as invalid).

There have been internal judicial criticisms of these vast powers of demosprudential constitutional leadership of the court. There has been criticism outside, in Parliament and media. But SAL has proceeded apace and is now the legal tender of the realm. Justice Goswami said long ago that the constitution is the “last place for the bewildered and the oppressed.” Varying this, I say that the Supreme Court of India has verily become the Supreme Court for all Indian people.

How do we judge this, how do we socially comprehend this happening? Nearly thirty years ago, I wrote a book called Courage, Craft and Contention: Supreme Court in the Mid-Eighties, in which I expressed my discomfort with the phrase “judicial activism.” I said this is a wrong labeling device. I called it a labeling device: anything you like or don’t like, call it “activism.” Only in 2011, I coined the term “adjudicatory leadership,” and now, since 2015, I have another name for it: demosprudential constitutional leadership of the nation.

So how do we judge justices as co-governors of the nation? Not by English law, not by American doctrine. We have to devise new standards of critique, of socially responsible and “response-able” criticism of judging our judges. One has to focus on the ability of justices to respond to justice—what people expect by way of a decent and just society. They certainly do not wish judicial despotism; they want justice with a modicum of constitutional discipline. Their Lordships have evolved it; where they do not succeed, or where they fail, it is the duty of affected people (constitutionally sincere citizens) to point this out. But such a discipline does not mean at all that the judiciary should abdicate its power and duty to help people realise their rights under the Constitution.

Yes, it is now an inescapable fact, if you were to obey the constitution, then judges are co-governors of the nation. They will govern according to the constitution, they are not in competition of power, they don’t want to become PMs or CMs [prime ministers or chief ministers]. They are High Court or Supreme Court judges, and they are also interpreting the Constitution, but Constitution is what they say it is. You must accept it as a social fact. If you were to distrust the facts, what else will fill their place? Should then prevail pure fancy or brute will masquerading as democracy?

A long time back, in 1983, Madhav Singh Solanki was the chief minister of Gujarat. He asked me, “Professor Baxi, what is your view: should judges interfere with the administration?” I said, “No, they should not interfere, but provided there is administration.”(Laughter)

TC: In all this, we tapped into your expertise. But you are also a concerned citizen. You have seen many things—the Emergency, the Mandal Commission protests, and you see the current environment as well. And maybe each generation believes that the crisis it is facing is the greatest, that the suppression of dissent is at its height for them. How do you see what is happening today in light of your experience and your understanding?

Baxi: Well, actually, I was born before either of you were born. I was born in 1938. I have, naturally, no direct memory of ‘38, of Hitler; I have no direct memory of the Indian struggle of independence, of Gandhi. It is only later that I was able to understand the world. The world is a very beautiful place and it’s a very evil place too. That’s a fact of life. The thing is, we don’t have a theory of evil, and we have a theory of good. We have dharma-adharma, we know. The last words Duryodhana [of the Mahabharata] said were, “Janami dharmam na cha me pravuti”—I know what is dharma, but I can’t act according to it—“janami adharma na cha me nivrti”—I know the adharma, but I cannot resist doing it. I know what is right, but I cannot do it; I know what is wrong but I cannot resist doing it. Adharma consists, in our times, not following the letter and the spirit of the Constitution; neither religion (personal faith) nor personal morality (swadharma), nor even the need for competition for power and circulation of elites (rajdharma) may supersede the Constitution, which strives to discipline power in all its hidden and not-so-hidden habitats.

I must make it also clear that our Constitution does not regard the right to insult as an integral component to freedom of speech.  What constitutes an “insult,” poses a serious constitutional question. The intention to insult does not depend on my capacity to be insulted but on the speaker’s intention to do so. The right to dissent and criticize should never be equated with a right to insult.

The right to insult must be distinguished from the fundamental duty, under Article 51-A(h) in the constitution to “develop scientific temper,” “humanism” and “spirit of inquiry and reform.” This fundamental duty extends, among other domains, to a reasoned critique of religious beliefs and practices. The exercise of this duty by citizens cannot be regarded as offending religious faiths. All scriptures everywhere can be critiqued as incitements to killing and as monological; on the other hand, faith may lead to worship of the scriptures.

People of deep faith are not affected by what people without faith have to say. In America, even now the creationists continue to dispute Darwin. Humanism does not stand in an adversarial relation with faith. Each must resolve for herself the conflict between science and faith. Neither is possible without free speech. To do science is not to insult faith; to perform religious beliefs by practices of worship is not to denigrate Article 51. The state and its law may intervene very sparingly in these domains; and it may do so with the discipline and in rarest of rare situations, leaving the clash of opinion always to the marketplace of ideas.

Also, there is a collectivity question: often whole faith community is said to be “insulted,” but who can represent the collectivity is a vexed question.  It helps but only partly for legislation to say that any representation that may have the effect of provoking religious enmity, or even ill-will, may constitute an offence against public order. It is for courts to say whether such an offence is committed or not. Often the legal system takes a long time to decide cases such as this; this should not happen but it does. Banning or censorship are often presented as solutions for potentially riotous situations, but whether this is a right response or not continues to be debated. Many publishers, even the standard ones, tend to withdraw the publication rather than face prosecution in courts. While their reasons are commercially understandable, their actions also add to the chilling effect on free speech.

It is important when courts finally say that no insulting words have been spoken or written or sound images are visibly represented, but the process is often the punishment (as even the American penal system and criminal law notably illustrate). Equally important is the chilling effect on authors, artists, curators and performers: surely to make any restriction on the right to free speech reasonable policing free speech has also be reasonable.

John Rawls, an eminent legal philosopher, made memorable a distinction between “rational” and “reasonable.” Colonisation was rational for the British as well as the European powers, as it entailed a close relation of means with ends. But that it was reasonable, is that just? Mohandas Gandhi thought colonialism never ever to be reasonable and brought India to freedom by non-violent means, combating always imperial legality. We need to remember always that what is rational (efficient) is not always reasonable (just). Calculative rationality is not the same as just reasonableness.

The situation where you think only one voice should prevail: that’s not right; only one wisdom should prevail: that’s not right. It’s a plural society. There are many voices, many visions of India. And the job of the party of the leader is to is to allow space for them all and to listen to these. As Prime Minister Narendra Modi once said, sabka saath sabka vikaas [we will all progress together]. Now what does that mean? That development may never occur if you were to exclude a large number of people, if you allow all kinds of people to violate others, to hurt others, or to be treated very indifferently by constitutional elites. There should be open spaces for different points of view, different ways of living. Our Constitution builds not on the disunity of perversity but on unity in diversity.

In many parts of India, there has been completely authoritarian view, and that has nothing to do with this party or that party. It has continued for long years. When Arab Spring happened, it set me thinking, because it had been 30 years since the Emergency. The people were protesting in Tahrir Square [in Egypt], and I relooked at the Constitution of India. Do we need an Arab Spring? My first answer would be no, we haven’t had 30 years of President’s rule, but you can have an authoritarian rule, without an emergency rule formally declared. Many states in India—many, many states—are ruled as if there was Emergency. We only complain when something happens in Delhi but what happens elsewhere? Life lived is certainly not always under the Constitution but under various conditions of suppression of rights and freedoms. There is repression based on caste, ethnicity, religion, language, identity in many parts of India. The duty of all governments is to fight that, and of citizens of course.

TC: Which are the states that you will include in that list?

UB: I’d rather not say that, but you know, and I know. There are many states and regions in India where the provisions of the Constitution are not fulfilled, at least as it relates to Part IV, the directive principles of state policy; where it is an uphill battle for even a minima of civil liberties and human rights are ensured; where citizens (beings with basic rights) are treated as if they were subjects (people with only those liberties that the sovereign of the day gives them); where state does not rule by sheer force, as the armed insurgent do; where policies are made and enforced by violent vigilante groups, and almost everywhere rape culture reigns, and where the Supreme Court and the high courts abundantly archive peoples miseries.

TC: You spoke of a theory of evil. In the larger Indic sense, do we even have a word for evil? Adharma is what is wrong. Paap is what is sin. But is there an idea of evil?

UB: I don’t know. Paap is being irreligious. Sin is evil, it is religiously defined as institutionalised religion. People, instead of being proved guilty, are killed on mere suspicion or allegations in encounter killing, and custodial torture, as per the cases before High Courts and the Supreme Court. Now, one may not say these are exceptions to otherwise sane regime of policies, or say these things may happen despite best of efforts or intentions or that these are necessary evils in any society.

We may all agree that policy is necessary, but policy is also a worrisome matter. [Joseph] Stalin’s policies—the New Economic Programme, NEP—killed millions of people. When Hitler happened, quite a lot number of Germans said it was a good thing. The whole world shook at the killings of 6-7 million people, but the world was not shaken by Hiroshima and Nagasaki, the world was not shaken with Mao [Zedong]’s cultural revolution, Mao used to say: “My god, it is beautiful and it is terrible.” When “beautiful” becomes a norm for conduct, normative beauty or aesthetic regulation may also become terrible!

Theoretically the word policing comes from the word police. Who are you policing when you make policy, is a very important question. I think management sciences study policy, political science, social science studies policy, public administration study something about policy, but ultimately whether a policy is right as fostering justice, is a moral question.

One needs some discernment (called in Sanskrit as vivek), you need some theory of evil. Is systemic governance corruption, torture, encounter killing, episodic or structural evil? What makes an evil structural and what makes it episodic? Can there be anything as a just war, in which non-combatants—even infants and children, are also killed as collateral harm?

The problem of evil, and the right commit a moral harm, even a human rights wrong, should command attention. We ought to think, whether it is evil or not, why is it evil, who says it is not evil, for how long a thing or a state of affairs is to be considered or not an evil. What is a sane decision? Even when it has insane consequences?

You would have concluded without a lot of information that my mind wavers. Perhaps, you may be right! I had a cerebral stroke three years ago, the effect of which is to impair some of my motor functions. I lost many all my languages, I lost English, learnt it through elementary school books. But I have lost many Indian and overseas languages. And I say to my daughter that I have half a brain left now. She heard me patiently many a time and then said, “Don’t say that to me again.” I said, “Darling, it’s a fact of life.” She said, “Ever since I was this high, you had half your brain, it has nothing to do with your stroke!”

We went through a very, very bad time. It’s my second life. Thanks to my wife and children, their constant care and nurture allowed the resumption of normal life. I know concretely now how much care-givers have to sacrifice. I know how difficult life could be. I could not do almost anything by myself. I lost languages, handwriting, computer and mechanical memory, some physical movements; had to undergo a lot of physiotherapy and movement…After six months, I decided to come back to life and carefully I victimised several people, like I am victimising you now! (Laughter)

TC: How much time did the language take to come back?

UB: Six months. I only got writing English back, through hard practice. I lost a lot of languages: Sanskit, French, Italian, Marathi (some of which I cannot now even write) My motor functions are affected. I studied the human brain for my book, Human Rights in a Post-Human World. I didn’t know that one kilogram of grey matter is all we have. But that was information; the real knowledge came when the stroke set in!

There is a very nice movie by Aamir Khan about a disabled person. It was called Taare Zameen Par … [in that movie] All the letters jump. This was my position when I was re-learning English. Every letter—j was here, p was there. I remembered Aamir Khan then. Much of my mechanical memory has gone. Fortunately, conceptual memory has remained…

notes on nationalism

This conversation is a part of ‘Notes on Nationalism,’ a series being published by The Caravan that considers various aspects of the public discourse around sedition, nationalism, and Indian identity. You can read other pieces in this series here, here and here

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