In this article, Maitreesh Ghatak, Professor of Economics at the London School of Economics, argues that the fight over freedom of expression in India is a shadow fight; the real fight is about preserving the sanctity of our law-enforcement and judicial institutions to protect freedoms of any kind.

A few weeks ago, the Finance Minister Arun Jaitley was at an event at the London School of Economics and Political Science (LSE) that I attended. When asked about the Ramjas College incident in February, he said that freedom of expression is fine but stops at "anti-national" discourse. Fast forward a few weeks, to the landslide victory of the BJP (Bharatiya Janata Party) in Uttar Pradesh (UP) and its choice of Yogi Adityanath as Chief Minister. The Yogi's frequent fiery and provocative remarks have often tested the boundaries of freedom of speech, occasionally being disowned even by his own party. Yet now he is the face of the State, the same State that we would rely on to protect all our freedoms, from existence to expression. And, we have reports of a Bengaluru woman facing a police case for her critical Facebook posts on him. To paraphrase Orwell, all citizens are free but some are evidently more free than others! There is always some degree of subjectivity in judging what is anti-national. If chants of azaadi¹ appear anti-national to some because it threatens the country's territorial integrity, incendiary speeches antagonistic to any minority group may appear anti-national to some others as well. After all a country refers to both a piece of land and the people living on it.

Also, controversies regarding freedom of speech are not unique to any political party or religious group. One may equally point to incendiary speeches given by politicians belonging to other political parties, targeting other groups, or to gross violations of freedom of expression where the perpetrators belong to the minority community, such as the recent incident when a man was killed for refusing to take down a WhatsApp group on atheism. What Joan Robinson once said about ideology equally applies to charges of intolerance – it is like bad breath, easy to recognise in others but not in ourselves. But whether it is what-aboutery (example, what about the other community's acts of intolerance?) or the apologist tone of what Salman Rushdie described as the but-brigade in the aftermath of the Charlie Hebdo incident (yes, that was bad, but you have to understand the provocation and the rage of the oppressed), it traps us in a debate about selective outrage that can never end. After all, no political party in India can claim that they have been faithful in their commitment to freedom of expression once in power (though the degree of deviation differs, and sometimes significantly). Similarly, one should not look at any violent incident in isolation without grasping whether one set of injustices may have provoked another one. But the problem, is where does one go with these arguments? Should we accept that bad things happen all the time, and therefore, not even try to have justice as an ideal and rely on strong leaders who will bypass the 'system'? This is a dangerous slippery slope. After all, a murder is a murder, a rape is a rape, a terrorist attack is a terrorist attack, and a riot is a riot, irrespective of who is the victim and who is the perpetrator. Rather than focus our outrage on every provocative thing that is said, we should direct it at the failure of our system of law enforcement that allows murderers, rapists, and rioters go scot free. While the US system is far from ideal, the fact is, within days of the racially motivated shooting incident that led to the death of an Indian-origin engineer in Kansas in February, the perpetrator was arrested and now faces the prospect of life in prison.

Where the rule of law works reasonably well, there is a legitimate debate to be had about the limits of freedom of expression in a democratic society. Supporters of freedom of expression focus on the voluntary aspect of it, saying, for instance, that if you don't like a book, don't read it. Their opponents argue that what is voluntary to a person or a group can indirectly harm a third-party, such as the proverbial act of crying “fire” in a crowded theatre. This is a debate with many nuances. And it is an essential debate. But that is not the debate we are having in India right now. The fight over freedom of expression in India is a shadow fight. The real fight is about preserving the sanctity of our law-enforcement and judicial institutions to protect freedoms of any kind, when the brute force of State power, drawing its strength from the support of the mob and an electoral mandate, threatens to make a mockery of it. Freedom that is not scrupulously protected by the rule of law from violations by other private citizens or the State machinery is not real freedom.

In other words, rule of law is necessary for freedom of speech. The fight over freedom of expression in India therefore is not over whether students should have the right to chant “anti-national” slogans in the Indian equivalent of an Ivy-league campus or invite controversial speakers in a panel discussion. It is not about the right of a young college student, who happens to be the daughter of a soldier who died serving the country, to voice her opposition to war, without being subject to the most horrendous abuse by internet patriots, or 'netriots' as we might call them. It is not about the intellectual self-indulgence of intellectuals and elites, who have now replaced landlords and moneylenders as the new most-despised class, or their right to pontificate and push the boundaries of mainstream middle-class opinion and sensibility. We must support that. It may seem tempting to think of this as a luxury enjoyed by elites, but it is not. A lot more is at stake. The real fight is not over freedom of expression but over the freedom to do anything. It is about the institutional protection of basic rights of individuals from mob-rule, as well as about putting a check on the coercive power of the State. Those who attack particular forms of speech or expression as allegedly hurting the sentiment of some group or other always choose the easy targets first. First it is something you write or say. Next, it is what you can eat or wear, what books you can read or what films you can watch. After that it is who you can be seen with or marry, whether you can go to vote peacefully, whether the police looks the other way while the mob destroys a legal establishment that is your source of livelihood (like reports of meat shops being attacked in UP) or a place of worship. It is about the use of fear and intimidation to convert the argumentative Indian into the submissive Indian, a servile and passive Aadhaar² card number who will conform to every whim of the government so that Big Brother can claim all izz well, every government initiative is succeeding wildly, and India is shining so that foreign investors, friendly corporates, and supportive commentators can croon about India as a rising superpower. Anyone who doesn't agree can be branded anti-national. Given the significant number of elected representatives in India who have serious criminal cases against them and the long history of politicians in power (of all stripes) interfering with the due course of law and justice, the phrase “the law will take its own course” that is often uttered by politicians, whenever his or her party supporters are involved in some rampant act of hooliganism, is more chilling than reassuring. Exactly in the same way as the phrase Don Corleone used in The Godfather to explain why a deal was “successful” – he made “an offer that could not be refused”. Now, it is true that the rule of law is not sufficient for free speech. One can have a strong rule of law in terms of efficient enforcement, and yet, the laws themselves may not be liberal, as is the case with some East Asian countries which score high on indices of rule of law but not necessarily on measures of freedom. We should and must fight to keep our laws liberal, aimed at protecting the freedom of citizens. However, without credible enforcement, however liberal the laws are, they will be ineffective at best.

That is why, first and foremost, the fight is over the rule of law. Any debate about what is anti-national or what constitutes the limits of free speech, like Donald Trump's tweets, are a calculated distraction.

A version of this article has appeared on The Wire: https://thewire.in/118330/behind-the-struggle-against-erosion-of-free-speech-is-a-fight-over-the-rule-of-law/.

Notes:

1. Azaadi is Hindi for freedom.
2. Aadhaar or Unique Identification number (UID) is a 12-digit individual identification number issued by the Unique Identification Authority of India (UIDAI) on behalf of the Government of India. It captures the biometric identity – 10 fingerprints, iris and photograph – of every resident, and serves as a proof of identity and address anywhere in India.