Let neither fear nor community piety usurp our freedom
Pratap Bhanu Mehta | 12 Aug, 2015
The experience of freedom in India has always hovered uneasily between hope and fear. The Independence of India was a watershed event in Indian history. Its constitutional articulation promised a great deal: protection of individual freedom, instantiation of equality, creation of a new form of fraternity, and the unbounded possibility of a new future. Yet, even in the moment of its enactment, independence was overshadowed by fear. We feared individual freedoms like free speech enough to encumber its protection with so many qualifications. State intervention in the cause of equality was justified. Deprivation and extreme inequality would make a mockery of freedom. But we soon found that what we often got was not equality, but a massive increase in state power. We hoped for a new fraternity. But the very tyranny of compulsory identities that had cast a violent shadow on Independence in the form of Partition continued to give our politics the colour of fear. And the sense of unbounded possibility was always hampered by the deadweight of the past: the openness of democracy often constrained by social hierarchies and continuities in administrative cultures inherited from the colonial state. As Ambedkar phrased it well, to enter Independent India was to enter a life of contradictions, and the dialectic between those contradictions is still playing out.
Independence was a complex experience. In the dominant narrative, India acquired the power to author its own destiny after experiencing colonial subordination, finally able to take care of its own material power and prosperity. But for most of the nationalist movement, India’s independence was meant to be something more than simply a quest to protect India’s interests, as vital as that consideration was. India could itself be an example of a pluralist society, eschewing domination, and even more ambitiously a helper of the human race in achieving the unity of mankind. Independence was supposed to have a meaning larger than what the ideology of the nation state allows. But this quixotic dream, shared by figures as diverse as Tagore, Nehru and Aurobindo, soon ran into the grim realities of world politics. Indeed, nothing signifies our distance more from the highest aspirations of Independent India than the contempt with which we currently think of this project. For Gandhi, who was a forlorn and unhoused figure on the day of Independence, the form in which it came was itself a sign of failure. We gained sovereignty and freedom, but only to subordinate it to a new form of collective tribalism that led to the Partition of India.
But Independent India could not afford to let the weight of a higher morality get in the way of securing the country’s interests, and it embarked upon its journey as a nation state. But while Independence was a break with the past in one crucial respect—Indians could hold their own government to account—it was not by any means a revolution. In fact, India’s relationship with the legacy of colonialism it was trying to overcome was far more complex. At the risk of being provocative, one can say that what distinguished India’s colonial experience was that India’s ruling classes did rather well out of it, for the most part. British rule was, let us not forget, welcomed as a form of liberation by many sections of society. For many Dalits, it was exactly the shock a stifling and oppressive social system needed. In the early years, many Hindus had seen it as liberation from Muslim rule and an opportunity to acquire power in a different form. But even for India’s privileged, the British Raj offered opportunities for the consolidation of their own power. And India’s privileged opted for democracy as an antidote to revolution since they shrewdly realised that democracy could be made to serve the interests of power. The new social contract was written in a way that guaranteed that any change would be incremental and ameliorative, not radical and revolutionary. One can debate the human costs of revolutionary versus incremental change. But it did ensure that while Independent India was new, it was not radical.
It also has to be said that as much as India’s ruling classes may have experienced colonialism as subjugation, they never internalised a deep sense of humiliation, because they benefitted from it. In this sense, it is interesting to speculate that Chinese intellectual history experiences Western victory with a much deeper sense of humiliation. Therefore, the Chinese state has had a more single-minded ideological pursuit of wealth and power to seek parity. In India, linguistically, culturally and socially, colonialism sunk deep roots to the point that it defined India’s elites; in some ways, even their identity. For China, therefore, the discourse on Westernisation was largely an instrumental one: about its use for knowledge and power. In India, the debate over westernisation was immediately more cultural, but therefore also more sentimental. India became independent, but it also remained a Western power, as it were.
The imagination of freedom that emerged was, predictably, a melange of compromises. Its beauty was that it allowed for the negotiation of many complex demands on the state: it gave all the classes some hope; but its workings equally ensured that privilege would not also be seriously challenged. That is the dilatory compromise which has given Independent India an amazing stability. But the question for India is: will the weight of accumulated disappointments with India’s prospects ever surpass the narrative of India as a site for hope? And can this turn into a politics that is angry and resentful? This is a large historical question that will turn on how just and secure India’s developmental trajectory turns out.
But there are two other compromises in our imagining of freedom that need a relook. The Indian state has always tempered its grant of freedoms with a discourse of fear that has infantilised, inhibited and restricted our freedoms. Second, there is a tension in the Indian Constitution between individual liberty and community rights. Of course some community rights are sometimes necessary to prevent injustice. But the dominant imagination has turned India from a zone of freedom into a federation of communities. Both these aspects of the way we imagined freedom need to be rethought. The rest of the essay reflects on this need to liberate freedom from fear, and liberate freedom from the traps of identity.
THE FEAR OF EXPRESSION
A sense of fear has always inscribed itself in our experience of freedom. It has inscribed itself in law. The number of laws restricting freedom of expression in India for example that are premised on fear is a scandal for a liberal democracy. These were legitimised under the shadow of Partition, under the pretext that the Indian state needed to protect its citizens from their own worse passions. In addition to these traditional restrictions, the state has, in the name of security, acquired overweening and near unchallenged powers of surveillance and detention. These powers operate, in their most draconian form, in areas like Kashmir and the Northeast, where the subjective experience of political freedom is still something of a mirage. The effective correlate of freedom, the idea of privacy, an inherently protected zone I can call my own, where I am accountable to no one so long as I am not inflicting harm on others, is increasingly vanishing. And there is a vicious circle: as the power of entities outside the state, small terrorist groups, social media and movements of capital make the state’s ability to exercise control harder, the state demands even more control as a countervailing force. To be fair, almost all liberal democracies have let fear triumph over their traditional solicitude for rights and privacy. But the net result is a freedom embedded in an ever present sentiment of fear.
The new Government, more than any other in recent memory, likes to project the idea of setting India on a new path, almost making a new tryst with destiny. It wants to replace pessimism with hope, defeatism with action, and low expectations with high ambition. But there is one area where the Republic really does need a cleaning of the cobwebs that the Nehruvian consensus has bequeathed to us: the domain of liberty. Prime Minister Narendra Modi made ‘Minimum government, Maximum governance’ the centrepiece his election campaign. He has said that he reposes trust in crores of ordinary Indians. And he has reiterated that he wants an Indian state where every individual feels secure. But it has to be said that on basic freedom, Modi’s pronouncements seems like an exercise in monumental irony. Not only has his government not lifted the pall of fear, it has at every turn exacerbated it. The one great failing of the Nehruvian consensus, beginning with its advocacy of laws of sedition, through the first amendment, and now through regulation of social media, was this. It crafted a whole series of laws that are handy tools for suppressing civil liberties. They may have been used only sporadically, but their very existence damaged our freedom. They may have been products of the fear that Partition and a precarious nationhood generated. But like all fears, they proved to be self-fulfilling prophecies, instruments to curb freedom.
Many laws restricting freedom were premised on imagining the Indian citizens in a certain way. Indian citizens were not capable of handling liberty, they were prone to violent excess that required their speech be restricted, they were thin-skinned and would take offence at almost anything. India’s citizens could not be trusted to handle liberty, so the paternalistic state needed to step in. These powers, in turn, created a whole train of abuses in our system that all political parties have connived in. The Nehruvian consensus was this: the state is virtuous, the citizen infirm; therefore empower the state at the expense of the citizen. If Modi is serious about ‘Minimum government’ in the sense of the term that matters most, he would do well to concentrate on the state of our civil liberties. The Nehruvian state, in this domain, had become, ‘Maximum arbitrariness, Minimum freedom’. Can creating the republic anew reverse this presumption and go for ‘Maximum freedom and Minimum arbitrariness’?
Just think of the appalling number of bad laws which abridge liberty that the Congress party has bequeathed to us. If the BJP misuses them, Congress will have set the precedent. Why do we have sedition laws still on the books, which have been routinely used to suppress social protest and dissent? Why have the restrictions on speech enacted by the First Amendment been so widely used? Ironically, on these two issues, the BJP actually has an intellectual inheritance to claim: KM Munshi and Syama Prasad Mookerjee were the two most articulate critics of some of these draconian provisions. It is a pity that the BJP forgot its own inheritance.
The list can go on. The Armed Forces Special Powers Act needs a thorough review and needs to be withdrawn from areas like Kashmir and the Northeast. What might minimum government mean for Indian citizens in an area subject to such draconian restrictions? Then there is the list of archaic laws: Section 295A of the Indian Penal Code is unlikely to be repealed. But it does need to be amended, because the way it functions in practice—and the interpretations that courts have given this law—has a chilling effect, almost equivalent to a blasphemy law. It is now an obstacle even to works of scholarship. Section 66A of the IT Act was struck down by the Supreme Court. But the clamour for replacing it is growing. Any attempt to replace the struck down act will be dangerous; it is open to the interpretive whims of officials. The colonial law makers, and the assemblies under them, at least had the good sense to more clearly articulate what terms like ‘offensive’ might mean. This law is so vaguely drafted that it will have far reaching effects on social media, and will be abused by chief ministers of all parties. There are other laws that need reform. Our law of criminal defamation is woefully out of date and makes questioning of companies and states that much harder. The Government has a reactionary position on Section 377 of the IPC. What will minimum government mean if it intrudes in the most intimate aspects of our lives? Hopefully, the Supreme Court will correct its own howlers, since this is a case of fundamental rights and discrimination. But the BJP should not stand in the way. The Government has rather ominously opposed a right to privacy.
All these laws abridge an important aspect of our liberty. They say government should be trusted more than citizens. They are enacted in the name of making us more secure. But they have the opposite effect of making us more insecure. Many of these laws, like laws protecting offences against religion, generate more offence by their very existence. A state that routinises the use of sedition or special powers, or seeks to intimidate the press, is not likely to elicit allegiance from its citizens. And a state that does not give its citizens the private space they require for their dignity breeds the worst kind of psychological fears. These laws, more than almost any other, are open to partisan manipulation and selective outrage. Each government wants them, and uses them against its favourite targets. We often object to them, not on the principle that these are bad laws, but on basis of who they target. These laws inherently discriminate in their operation. In some cases, fixing the judicial system is the answer. But the opposite is also true: when the laws themselves signal arbitrariness and disregard for individual dignity, it will generate judicial pathology.
These laws have extracted a price. In a country where due process itself can be the punishment, these laws increase the asymmetry of power between state and citizen. A genuinely new tryst with destiny would require a new tryst with freedom. If Modi is serious, this is the place to start. If he truly wants to overcome the Congress legacy, he needs to start by making a new tryst with freedom. But all the signs are that he fears freedom more than he fears fear. This will not be healthy for India’s quest for a deeper freedom.
THE FREEDOM OF IDENTITY
The sentiment of fear is inscribed in social relations in more ways than one can list. In a traditional caste hierarchy marked by inequality, fear pervades the social order. For many, the core promise of freedom was the liberation from one of most egregiously hierarchical social orders known to mankind. And there have been massive changes in this social order. Migration and urbanisation can mitigate some of the most coercive aspects of caste. Political empowerment has in many cases overcome historical subordination. The language of purity and pollution is increasingly a pale shadow of its past. But this social change in turn has produced new fears, and new curbs on freedom. In many areas of the country, Dalits still remain at the receiving end of brutality, now prompted as much by fear of their independence as by considerations of purity. And there is the often unarticulated fear and anxiety that grips the privileged when previously oppressed classes begin to find a voice. This psychological undercurrent of fear still acts as a profound barrier in creating the kind of fraternity that the Constitution envisaged.
India’s self presentation is that of a tolerant society, capable of managing extraordinary diversity. And to be fair, India has been remarkably successful at providing a home for all kinds of groups and cultures. It has celebrated diversity. While diversity is to be cherished, the form of group diversity we have promoted has also become a barrier in two ways. First, it is compatible with segmentation of groups and distance between them, which acts as a barrier to the spirit of freedom. In traditional society, each group could find a place because each group had its fixed place. To put it very schematically, it was a form of toleration compatible with walls between communities. Indeed, one of the major challenges for Indian society is that we have internalised forms of toleration that are suited to segmented societies. It is compatible with the idea that boundaries should not be crossed, populations should not mix, and that to view the world as a competition between groups is fine. There is no country in the world that talks so much of diversity. Yet no other country also produces such a suffocating discourse of identity, where who you are seems to matter at every turn: what job you can get, what government scheme you are eligible for, how much institutional autonomy you can get, what schools you can run, what house you can rent. Conceptually, there is no incompatibility between celebrating diversity of the nation and refusing to rent housing to a Muslim just for being Muslim. Such a conception of toleration does not work where the need is for boundaries to be crossed: people will inhabit the same spaces, compete for the same jobs, intermarry and so forth. Our moral discourse is so centred on diversity and pluralism that it forgets the more basic ideas of freedom and dignity. The dream of freedom in our constitution was to imagine a form of citizenship where citizenship does not have to carry the burden of identities. These identities may be important to individuals. They are private facts about them, with which they can do as they please.
The most virulent form in which freedom is curbed is the freedom of women. On the one hand, there is massive social change underway: female enrolment in post school education is now equal to that of men. Yet their low labour force participation, the increasing and brutal violence against women, is probably the single biggest curb on freedom. Yes, in comparative statistical terms India’s story on violence does not look horrendous. But this is small consolation in a culture that women find deeply oppressive and unsafe. It is a familiar fact that often the only site on which the politics of tradition and modernity is played out is gender; social conservatism simply acts as a garb for repressing women.
None of these pathologies will be addressed if we do not reconceptualise India as a Zone of Freedom (ZOF) rather than a Federation of Communities (FOC).The basic moral intuition is simple, and involves no cultural baggage or ‘Western values’. Every group in this country has at some time claimed that something—a cultural practice or a state project—not be imposed upon them if they do not consent to it. Minorities use this argument, rightly, against majoritarianism. The simple intuition is that this privilege should extend all the way down to individuals. So the claim that India should give primacy to individual freedom entails a moral individualism, in that the individual is the unit of moral justification. But it takes no stand on what kinds of lives individuals might want to lead, whether these are ones of deracination or thick cultural belonging. All it says is that these should be freely chosen. And it applies the same argument that is used to see India as a federation of communities: nothing must be imposed upon communities that they would not accept.
The real battle in India is not between secularism and communalism as conventionally understood. It is between forces of community repression and individual freedom. It is a battle between two different ideas of India: is India a federation of communities (FOC) or a zone of individual freedom (ZIF)? In our political culture, the idea that India is a federation of communities has become almost inescapable commonsense, in a way that poses a great threat to liberty and distorts our intellectual culture. Both ideas rest on variants of the idea of toleration, but their underlying logic is different. We often confuse the two. Here is the core contrast in the Two Ideas of India.
On values, the FOC places primacy on group diversity. ZIF places primacy on individual freedom. ZIF values diversity, but as an outcome of free individuals exercising their choices. It rests on the intuition that the same moral rights that groups claim, namely that nothing should be imposed on them that they could reasonably object to, should be applied to all individuals within groups as well.
On toleration, FOC is compatible with segmented toleration: each group has its rightful place, so long as it stays in its rightful place. This has been the traditional Indian conception of toleration, peculiarly ill fitted to an age of mobility and competition in the same spaces: different groups will inhabit the same workplace, intermarry and so forth. ZIF recognises that the challenge is not protecting community identities; it is protecting those who breach them.
On citizenship, FOC is premised on differentiated citizenship. What rights you have in particular areas depend upon your identity. This applies not just to areas of personal law, which are out of the purview of common deliberation. But these extend to matters like right to administer institutions. The degree of autonomy an institution is allowed in education, for example, depends on its identity, not functionality or financial relation to the state. ZIF is premised on common citizenship as much as possible, and on the idea that rights and identity must not be as closely aligned as in FOC.
Both differ in their approach to identity. FOC is enamoured of identities. Our legal identities are in part mediated by compulsory group identities. Our social and political interactions are premised on inescapably slotting people into identities; individuals are this caste, that religion and so on. There is no escaping this identity. ZIF acknowledges that people should not be targeted for being who they are; occasionally an axis of deprivation structured around identity may need to be addressed. But it finds suffocating the constant need to slot individuals into compulsory identities.
Both have a different approach to justice. In FOC, the primary metaphor for justice is representation and balancing. The distribution of power should match the distribution of identities. No matter what representatives do, they count as representatives of a particular community by virtue of ethnicity. The primary mode of politics is balancing; if one community is given something, another community must be given something in recompense. For ZIF, the primary metaphor for justice is equal opportunity of individuals. ZIF is suspicious of claims to represent, because it is suspicious that there are unified community claims that can be represented; what individuals do is more important than what group they stand for. In FOC, the emphasis is on a politics of overt symbolism that can serve the needs of balancing and representation. For ZIF, the emphasis is on institutions that can protect individual rights.
With these rough contrasts, the intellectual history of modern India looks quite different. Our constitution’s ambition was to convert India into a zone of freedom, to liberate individuals from the burden of compulsory identities, to create a common citizenship and to give primacy to individual rights. But it made a few compromises that allowed identity to become central to thinking about citizenship. What the Constitution left as a tension, our political culture transformed into a full scale advocacy of India as a federation of communities. For example, its conception of Indian citizenship was to think in terms of Hindu plus Muslim, not to think beyond Hindu and Muslim; it was to think in terms of a collection of castes, not beyond caste. And our existing social practice has deep affinity with this way of thinking. ZIF does not argue that these identities will vanish, only that they will be largely private matters.
Only if India is imagined as a zone of freedom can the forces of social repression be challenged. But the working of this depends upon the credibility and justice of state institutions. India’s biggest tragedy is that a discourse on individual freedom is an object of suspicion for two reasons. First, oppressed or marginalised communities think that a focus on individuals is a ruse to disguise the oppression that comes from their membership of a community; it throws a veil over oppression and injustice. Second, there is an inherent paternalism that constructs this as an elite project. But the first worry can be addressed only if institutions do not discriminate on account of people’s identities, and actual opportunities are not determined by accidents of community identity. The second worry is misplaced: the core idea is simply that individuals have the right to author their own lives; this ability to challenge the dictates of community is valuable at all levels of society. The prerogatives of community do not license assaults on freedom.
The deepening of freedom requires that we do not let the state use fear to usurp freedom, and we do not let community piety usurp our freedom to author our own lives. Some might say that in India the big battle is over economic freedom. The sentiment of fear is inscribed in the economy. It goes without saying that any just and sustainable economy will not only unleash private productive energies, it will also have to provide substantial public goods and welfare and a complicated array of administrative regulations. A modern society is, for good reason, called a ‘risk’ society, and a vast system of administrative law has to regulate these risks. This will require, to a great extent, state intervention in the economy. It is hoped that these interventions will be backed by democratic legitimacy, so that there is a sense in which we can call these regulations our own. Rather than being curbs on our freedom, these interventions are instruments of our good that we have consented to in some fashion. But there has always been the sense that so much of state intervention in India is not about enhancing our capabilities, expanding our effective enjoyment of freedom, but about distrusting citizens to the point where the state becomes a source of fear. To adapt the hyperbolic language of the nineteenth century anarchist Proudhon, the state’s protocols of registering, taxing, enrolling, licensing, measuring, authorising even the most ordinary business or transaction, leaves most economic agents reeling. But it is not only state distrust that restricts economic freedom: community narratives are hostile to migrants. India’s middle-class is imagining cities not as free spaces of civic reciprocity and a shared public sphere, but as gated communities and barbed wired fences. The more a state distrusts its citizens, the more it will seek control. In India, reasonable economic and institutional liberty are always precarious, and there is still no consensus on the degree of economic liberty we are comfortable with, free of fear.
Freedom is many things. It is expressed in legal rights. It has a psychological connotation, a sense of being free. It signifies not just protections against the state, but horizontal protections against being dominated by others in society. It has an individualist aspect: one is truly free, as the great poet Pushkin once suggested, when one is accountable to no one but one’s own self. But it has a collective dimension: freedom can be enjoyed only in concert with the freedom of others; it is created and nurtured through partnership. Freedom is a social experience: the ability to access spaces of a city unfettered. Freedom has to be reconciled with other values, primarily the need for social cooperation. Freedom requires a range of background conditions to operate without conflict: reciprocity, a sense of judgment, and even justice. But this Independence Day, there is a sense of foreboding that instead of deepening the experience of freedom, we are rendering it more precarious. We need a conversation about what Independence should mean—for every citizen.