Saturday, July 22, 2006

But start with 'process' first

The government apparently has an arbitrary policy on enforcing article 19 (2) of the constitution, when it comes to content on the internet. Now, in a democratic country, if due process is not followed, you always have judicial recourse. Now we have RTI as well. A 'ban' can thus be contested purely on technical grounds for flouting due process of law, irrespective of whether the government's motives were justified (or not) based on 19 (2). That is an entirely different argument.

So consequently, even if the government does go through the right motions to carry out the ban, it can still be contested, if you feel it is an inappropriate use of 19(2). What happened in the case of the Da Vinci Code in certain states of India is proof enough that it works. While I had argued on purely technical grounds, the court judgement went a step further and took the view that it was indeed an inappropriate use of powers granted in 19 (2).

Let's take the argument to the next logical level. If the government does successfully prove that it was well within the ambit of 19 (2) to restrict free speech, only then do you go about questioning the very validity of the sections contained in it when you appeal the decision in a higher court (or submit a new writ or PIL). So there is no point in talking about the larger issue of 'unfettered right to freedom of speech' right now. The first amendment in America, even though it apparently guarantees such an 'unfettered' right to freedom of speech and expression, cannot uniformly protect all cases using it for argument. For that matter 19 (2) also cannot be applied arbitrarily. The words 'reasonable restrictions' in 19(2) therefore, is our reverse-version of the American first amendment. And even in this advanced stage of things, cases contesting the validity of the usage of 19 (2) are argued first based on precedent and definition, and only later, on certain vague notions of 'right', 'morality', 'ethics', 'logic', 'convention', and that quote attributed to Voltaire.

Even to do that, you need an extraordinarily clever lawyer as demonstrated in the Fuck the Draft case in America. Read this to know more on the issue of word taboo in American judicial practice (page 35 of the PDF document available for download from the linked page describes how Professor Melville Nimmer broke the word taboo, and thus won the case). Probably this case in India needs such a strategy if taboos even among the judiciary are to be broken.

That is with respect to the judiciary, but the two other arms of our democracy are run not entirely by those who are generally supposed to be convinced by the use of logical reasoning. They comprise of elected representatives. And politicians, as you know, are not always clever. But nevertheless, represent their constituency perfectly. As Nilu points out, we, the people of India are prone to illogic, and have a definite lack of regard for proper process in whatever we do. So, it is only natural that we democratically transfer these incredible qualities even to the highest levels of government.

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