Late last year, I wrote in these columns that we were in danger of becoming an ‘elections-only democracy’. Once a party or coalition wins an Assembly or General Election, it considers itself immune from criticism for the next five years. The other instruments of democratic accountability: legislative debate, judicial oversight, a free press (and free speech more generally), and peaceful protest, are neglected or even disparaged.
Indian democracy is based on the ‘Westminster model’. So it was with much interest that I picked up a new book by the distinguished British lawyer Anthony Lester. The book is called Five Ideas to Fight For, these ideas being human rights, equality, free speech, privacy, and the rule of law. While largely about the United Kingdom, Lester brings in cases and comparisons from other parts of the world, India not excluded. The book does occasionally lapse into self-promotion; there are perhaps too many references to cases Lester fought, committees he served on, and laws he drafted. Nonetheless, I found the book stimulating, containing at least five lessons for those who fight for these noble ideas in our country.
Lesson one is that democratic progress is always slow and halting. Lester’s book traces the painful, tortuous, two steps forward one step back progress in promoting gender and racial equality in the UK, and so it has been with the promotion of caste and gender equality in India, or with enhancing the rights of the differently abled and of sexual minorities.
‘Complete equality’, writes Lester, ‘is an unattainable ideal, but we must come a good deal closer if we are to remain a civilized society’. This applies entirely to India, with the caveat that we should substitute the word ‘remain’ with ‘become’.
The second lesson is that it is bureaucrats, even more than politicians, who promote secrecy, withhold information, stall the passing of progressive laws, and in other ways violate citizens’ rights. Reading Lester’s account, I was struck by the sheer awfulness of the British state agencies who persecuted homosexuals even as late as the 1980s.
The third lesson is that since an independent judiciary is so crucial to democracy, ‘judges must be appointed on merit, not because of their views on controversial mattters of the day or their support for a political party’. This applies even more strongly in India, because our politicians are more interfering, and because of the carrot of post-retirement jobs that Governments can offer Judges and Chief Justices, which may tend to influence verdicts made towards the end of their tenure.
The fourth lesson is that while a judiciary must be independent, it should not seek to become an instrument of radical change. The judicial making of, or intervention in, public policies should be resorted to only in exceptional cases. ‘Judges have no competence or expertise’, writes Lester, ‘to decide how to create a health service, or tackle poverty, or make the trains run on time.’ He adds: ‘It is only rarely when democratically elected arms of the state have failed completely to fulfil their obligations to protect economic, social and cultural rights, that the courts may intervene, for example, to prevent starvation or to halt discrimination in providing health care.’
It is true that the failures of the Indian State in this regard are far greater than that of the British State, and so judicial intervention has been more frequent here than in Britain. Even so, some Indian judges have been too zealous in seeking to frame and direct policies better left under the control of the executive.
The fifth lesson is that the Republic of India inherited a series of repressive laws from their colonial laws, and it is past time these were repealed. Although the British have abolished the most obnoxious of these laws, we retain them. Section 377 of the IPC is one obvious example. Another is the notorious law of sedition, which inhibits criticism of politicians and Governments. Anthony Lester mentiones two celebrated cases where British writers were charged with having brought King and Country ‘into contempt and hatred’: one in 1792, when Thomas Paine was convicted for publishing his landmark tract, The Rights of Man; the second in 1909, when a Glasgewian anarchist named Guy Aldred was sentenced to ten years for the ‘crime’ of advocating the end of British colonial rule over India! Seditious libel was finally abolished in Britain in 2009, but the law the Raj introduced into India remains on our statute books, stifling artistic, literary, and political freedom.
All democracies are imperfect. Lester is scathing about the deficiencies of British democracy; but in fact their democracy is far less imperfect than ours. For instance, his book does not so much as mention penal reform, a subject of overwhelming importance in our country. Few things shame Indian democracy more than the shocking state of our prisons, the harsh treatment of undertrials, and the venality of our police. The degradation and barbarism of our prisons is made more horrific still by the luxurious conditions offered VIP prisoners such as mafia dons and politicians, in a complete and utter violation of the basic democratic principle of equality before the law.
Anthony Lester writes that ‘human rights are not the gift of governments. They are our birthright.’ So they are. In India, governments have been even less sensitive to, and even less protective of, human rights and free speech than in Britain. No Indian politician, of any political party, has any serious (or perhaps even superficial) commitment to these basic principles of democratic functioning. Much more so than in the United Kingdom, it is citizens who must fight for these rights themselves.
FIVE LESSONS FOR
(published in the Hindustan Times, 3rd July 2016)