## Friday, April 29, 2011

### Slavery is freedom

While many people in India think that we have freedom of speech, things are actually quite bad.

There are two well-respected global rankings in this field:

• Reporters Without Borders has a `Press Freedom Index'. For 2010, they show India at rank 122 out 178 countries. In their ranking, Nepal and Jordan and Qatar are more free than India.
• The other prominent ranking is by Freedom House. For 2010, they place India at rank 72 out of 196. In their ranking, Hong Kong, Benin and Tonga are more free than India.

Why are things so bad? The Constitution does not establish freedom of speech as a fundamental right. Laws of colonial vintage punish free expression, and new laws (e.g. connected with the Internet) have not shown a greater interest in free speech. Books are regularly banned, journalists or bloggers are regularly imprisoned or killed. It is a war zone out there.

See India puts tight leash on Internet free speech by Vikas Bajaj in the New York Times on 27 April.

I was hence quite surprised to see reporting by Sanjib Kumar Baruah in the Hindustan Times where he quotes the minister for information and broadcasting, Ambika Soni, as saying:

"Our media is probably the freest in the world"

It is bad enough to have a fundamentally flawed Constitution and laws where free speech is not enshrined. The least we can do in this unhappy situation is to recognise that we have a serious problem and go solve it. We are better off without such Orwellian claims.

Similarly, Amartya Sen, writing in the New York Review of Books notes that there is more free speech in India than China. Yes, there is. But should we get pleased when we are good when compared with one of the more thuggish states of the world? India needs to set its sights higher.

We like to think that while we're poor, we're one of the better democracies out there. Okay, if so, shouldn't we be atleast in the top quartile in international rankings of freedom of speech? That would mean getting to a rank of 45 (instead of 122) in the ranking by Reporters Without Borders, and a rank of 49 (instead of 72) in the ranking by Freedom House. To get there, we will need to first start by acknowledging that we have a problem, instead of engaging in triumphalism.

1. While I considered myself to be quite well read and informed about current events, I was surprised and frankly ashamed that I wasn't aware of the seriousness of the issue. The hypocrisy of Indian government on the matter astounds me.

But then it got me wondering, why was it that I never noticed this matter before. And a few google searches answered the question. Not a single mainstream media in India has run a decent objective article on the matter. One half-hearted TOI article talks about plight of the ISPs rather than showing concerns about freedom of expression of general populace.

If the media itself isn't willing to show courage to talk about this issue, I'm surprised why are we even ranked so high. The freedom of expression seems equally curbed by need to display jingoism on trivial issues and hog advertisers' attention.

2. It is not accurate to say that the freedom of speech is not enshrined in the Constitution. It is.

The executive may always undertake actions that subvert Constitutional principles (for example, banning books, arrest bloggers using the Information Technology Act, etc.), which is why judicial review is provided for to test the Constitutional validity of such actions.

The real issue of why the media is free in India is the absence of effective redress through the court system. It is because a suit for damages for defamation takes 20 years for a basic trial (and then the rounds of appeal) that our media is perceived to be among the "freest" in the world.

3. "Why are things so bad? The Constitution does not establish freedom of speech as a fundamental right..."

So, what is this?

"Article 19(1) All citizens shall have the right (a) to freedom of speech and expression;"

4. If freedom of speech was a fundamental right in the constitution, then how is it that a variety of anti-free-speech provisions are found in various laws - not only in old British laws but also in modern legislations?

Is it that nobody has taken interest in the issue of free speech, so challenge of the laws has not taken place at the Supreme Court? Or is it that the constitution contains weasel clauses through which the right is not so fundamental? (As has been done with many other aspects of human freedom).

So is it a hopeless issue given this constitution, or is an issue like the decriminalisation of homosexuality, where we only need the courts to read the constitution properly?

5. Somasekhar, KC: you need to look at the entirety of the law. The article goes on to allow exceptions and allows the framing of future laws that can put curbs on freedom "if necessary".

Contrast this with the American law which anticipates this problem and forbids creation of laws in future that would restrict freedom.

The Indian law is flawed because lawmakers can pick and choose what is allowed and what is not. That is the problem with how freedom is dealt with in our constitution. We could do with a US style first amendment to our constitution.

I have added Ambika Soni's uninformed comment in the controversy section of her wikipedia profile.

6. Freedom of speech (and the press) depends on the extent to which Private Property is inviolable. Every newspaper and journal - and every blog - is Private Property. Under socialists or communists, there would be only "collective property" - and Pravda. So the key to all Liberty lies in Property being inviolable - and nothing else.

Nothing else matters - except Private Property being Inviolable by The State.

7. @ Ajay,
Yes, the Constitution does not need any fixing. It is a rare excellent foundational legislation on which our Republic is founded.

Every Constitution, while providing for inalienable rights, would provide for "reasonable restrictions" to maintain a certain law and order society chooses to adopt. Constitutional courts (writ jurisdiction of the high courts (Article 226) and of the Supreme Court - Article 32) have the fullest power to interpret if a certain law would result in such an inalienable right being alienated. For example, a law providing for making assembly unlawful by declaring curfew during riots and unrest would interfere with the inalienable freedom of movement. Another example: the power of SEBI directing someone not to deal in securities, thereby interfering with the otherwise inalienable right to carry on business.

Therefore, every citizen who perceives that his right is being trampled upon has a right to approach a writ court and seek to outlaw a legislation or an action that takes away this fundamental right enshrined in the Constitution for his benefit.

@ Vivek, for the reasons above, the issue is not how you portray. The Indian Constitution and the US Constitution both provide for the same check and balance of judicial review. An American male citizen who feels his right to life is oppressed because his state does not recognize his marriage to another male, can seek to outlaw the legislation. As did homosexual rights groups, by approaching the Delhi high court to outlaw the sweep of the Indian Penal Code.

The "State" has the fullest powers to make laws within the framework of the Constitution. Whether such laws are within the framework or whether they are "ultra vires" (outside what is permitted by the Constitution) is a question that can be answered by Constitutional courts.

@ all, generally:

We are a young Republic - just over 60 years in age. The US went through near-similar circumstances at this adolescent age of her Constitution. The man in uniform will always want to have discretionary power to interfere with people's lives and it takes a vigilant society to protect itself from such an attitude and avail of Constitutional remedies.

As a society, we are not fully Republican yet, in our thinking. We still adore and love our powerless "rajasaabs" and in fact vote some of them into office in our Republic. We crave for new Rajas, rather than for the institutions they head. People do not see SEBI taking a position. They see a Damodaran or a Bhave taking a position. They do not see an RBI having a policy. They see a Reddy or a Subbarao adopting a policy. It is only age and experience that can move our collective consciousness from the tribalist collective servile legacy to a truly Republican mindset.

Again, this is not unique to India. Australia is going through the same self-identity contemplation. Republican politicians still get starry-eyed at weddings in the monarchy and feel the need to attend to pay official obescience.

Remember, the Constitution was not voted in by popular vote. It will take history to make it popular and reach its true import to the non-law-reading person. Besides, courts too can only be manned by members of the same society. The reluctance or keenness of a judge to overturn a law is therefore a function of how the mind of the judge in question is attuned by issues that impacted his own psyche - as would any decision by any person in any office.

8. This piece makes interesting reading! Just spoke of Australia and here is what the Economist reports:
http://econ.st/j2Z6qG

9. Very interesting. Curious as to how Freedom House and others measure press freedom.

Your post and most of the comments on it seem to imply that the problem lies in government meddling. Another major issue with the press in India is conflicts of interest wrt ownership. I have heard from several journalists (though unsurprisingly haven't been able to confirm through any articles) that the owners of publications such as the Times of India also have direct stakes in many companies and regularly suppress stories that are counter to their interests in those companies.

10. As I had indicated in a previous comment, I had added a note on this to Ambika Soni's profile contrasting her comment with press freedom rankings. Someone from NIC repeatedly deleted that paragraph while I added it back. Now I get a message purportedly from the minister's office asking why I am making malicious comments and that they would take it up legally. Sigh... they don't even get the irony of what they are saying!

11. Just to complete the record on my last comment: it was sufficient to call the minister's secy's bluff about taking legal action on this. They didn't provide a reason to disallow the wikipedia edit and hence it stays. It wasn't that bad, after all.

The main goal of this exercise was not to disparage the minister, but to escalate the issue of incongruity between her claim and global press freedom rankings. I'd say the exercise achieved its goal better than I hoped. Her office is now aware that the press freedom comment might have been controversial.
It was a useful, low cost form of escalation, effective in piercing sycophantic layers and in registering a protest that is visible to them.

Now, whether there is any actual benefit or not is a different point. Atleast the minister's office cannot use the excuse of ignorance going forward.

12. While I'd agree that our press is certainly not as free as it should be, I'd also question the ranking criteria too. How does Australia, with just 2 national dailies rank so high (30, though it has fallen since the 2010 rankings)? And all newspapers there are owned by just two media conglomerates. Press censorship doesn't come from only the government, private enterprise is equally culpable.

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