Every few months, India gets into a tizzy about freedom of expression. The recent drama on Jawaharlal Nehru University's campus, the pulping of Wendy Doniger's book on Hinduism, the mob violence at Dadri, the smearing of black paint on Sudheendra Kulkarni, a writer, the antics of fringe groups like the Sri Ram Sene, and other events have occupied the headlines and television studio airtime in their turn. Less honoured have been the riots in Malda, the shuttering of Bombay's Avadhnama, the censorship of Vishwaroopam, and a long list of other incidents.
As anyone following the freedom of expression debate in India knows by now, Article 19(2) of the Indian Constitution introduces seven criteria which may limit expression. One factor that complicates the debate further is that the implementation of these laws have not been uniform over the years - an MF Hussain is met with sympathy while a reprint of the Danish Jyllandsposten cartoons is met with riots and media outcry. Despite this hypocrisy, a precious few free speech advocates are of the opinion that all restrictions should be done away with and India should adopt a Brandenburg versus Ohio standard of free expression, referring, of course, to the landmark 1969 case in the United States Supreme Court.
In principle, this sounds excellent. In practice, however, India is a far more complicated beast to govern. The evolution of the Brandenburg benchmark occurred over centuries of not just juridical but also political and social evolution. The values enshrined in that decision not only reflected those held by the American people but also were capable of being enforced by the American state. The United States was aided in part also by circumstance: they had the luxury of starting tabula rasa, without any historical baggage, the distance and strict immigration laws ensured a certain homogeneity, and the participatory nature of their democracy was allowed to increase only gradually.
India's leaders at independence, however, chose to rush headlong into democracy with universal adult suffrage. It leaders at the founding — at least those who held sway — preferred abstract theories to the exhausting reality of the new republic. The price of this decision would be borne by future generations of Indians every day of their lives. This is not to say that India should abandon democracy — it is too late for that now. Once the masses have tasted power, they are loathe to give it back. However, it does mean that Indians approach the implementation of other ideals concomitant with democracy with more caution as the country inches forward towards prosperity, liberty, security, and stability.
But first, what is democracy? Etymologically and historically, it has come to mean a system of government in which rulers are chosen by the people for fixed intervals. There is no commitment to Liberalism, even implicitly, in such a system. The checks and balances that have evolved in most democracies to protect minorities from the excesses of the majority came from cultural values over time and were institutionalised via other non-electoral avenues. Universal suffrage has had no role in the creation of a system of civil liberties. India's leaders did not understand that a liberal democracy — and, by implication, free speech — cannot take root in a society that has not first become free and liberal-minded; only those who have drawn poorly from history can suppose otherwise.
A stable liberal democracy presupposes a people assured of their identity as a society as well as individuals within that society. People divided by opinions on public policy may equally find themselves in the majority or minority but are not so in perpetuity. Yet those who see divisions based on ethnic or religious markers do not experience similar fluctuations. This dynamic explains the formation of democratically-minded nation-states along rather singular ethnic, religious, and even linguistic lines.
India's continued governance by Anglicised elites after independence brought to power a group who had no sense of their own history and hence their own strengths and limitations. Adding a democracy based on universal suffrage to the mix when India's national identity was inchoate at best, as the politics surrounding Partition amply demonstrated, was a recipe for disaster.
This was compounded by separate law codes and reservations in education and employment for certain communities. Over time, aided by changing demographics, demands from these special communities have become more economic and political in their nature. No longer were the provisions seen as catalysts towards equality but as permanent and rightful dispensations. It should be no surprise, then, that the natural core majority resents this situation because it militates against their sense of fairness.
The weakness of Indian liberal democracy, then, stems from the failure of the nation-building project that has left large sections of society uncertain about their identities and rights. As Karl Marx had argued that socialism would develop as the high point of industrialisation and capitalism, pluralism and multicultural stability can arise only as the high point of core majority stability. It is folly to assume that the demonisation of the majority is the way to achieve this.
Another weakness of Indian liberal democracy comes from the failure of its institutions. For decades after independence, they were ravaged by the Congress for political reasons and have lost the trust of the citizens. Traditionally, liberalism has been closely related to democracy because both aimed at restricting the power of the absolute state.
This went hand in hand with the increasing rule of law and social trust. Seen closely, however, modern democracy increased only political liberty but not social liberty. This, it can be argued, is the contribution of a robust judiciary that took both the constitution and contemporary community standards into account. Attorney-General versus De Keyser’s Royal Hotel Limited, Fagan versus Metropolitan Police Commissioner, A and Others versus Secretary of State for the Home Department, Eweida versus British Airways plc, Roe versus Wade, Donato Casagrande versus Landeshauptstadt München, and other cases have defined the scope of civil liberties and pushed against more restrictive executive and legislative practices. In contrast, Indian courts have generally served the narrow political interests of the governing elite and done little to gradually expand civil liberties in India. To be fair to the judiciary, other factors prohibited such a role too.
Why was the spread of universal suffrage so slow? There were two reasons: one was that the overwhelming majority was illiterate, ignorant, and incapable of forming an informed opinion on state matters. The second was the belief that only those with property were sufficiently vested in the community to truly consider its best interests. The expansion of democratic rights, therefore, coincided with the expansion of secondary education.
With the changing nature of the economy, intellectual contribution and conscription joined property as criteria by which investment in the nation-state was measured. India's early governments deserve some blame for failing to raise functional literacy rates quickly but it is also true that the education of hundreds of millions of people was going to take some time.
Despite lacking the prerequisites for a democracy, let alone a liberal democracy, Indian leaders of the day rushed headlong into a bold yet ultimately ill-timed social experiment. Had successive governments governed wisely and without favouritism between various social groups, the impact on the country's liberal evolution might yet have been mitigated.
In the age of globalisation, European multiculturalism has come under threat; unable to assimilate newcomers into the European ideal, the Union is facing a crisis as the continent's core majority opposes the influx of refugees and even increased economic aid to the financially weaker members of the Union at the expense of the more prosperous member states. This is a tension India has lived with since its inception and watching the reaction of a mature polity such as Europe over the past few years only dampens hope in the Nehruvian idea of India even further.
The internet has also produced pressures nation-states were not designed to handle. With the rise of multinational activism and communications, ever more people are participating in political processes without necessarily any stakes in local communities. Democracy presumes civic participation in its institutions; that is the price of membership for receiving the economic and social goods of the state. Instead, contemporary democracy has lost all tethering to any sense of obligation or duty and is merely a one-way relationship for the redistribution of wealth and favours. In many cases, these disproportionately benefit those who have made no contribution to the prosperity of the whole.
This might also be an argument for the return to a certain elitism in democracy as the number and complexity of issues before a government increase dramatically in the 21st century, allowing those with greater knowledge, experience, and skin in the game to contribute more meaningfully to national and global discussions.
Above all, governance must be about stability and order. Activists have the luxury of preaching a one-point agenda, however noble, but the state machinery must consider the overall picture before implementing policy. Let us, for example, consider the ramifications of implementing a Brandenburg standard free speech law overnight in India: the very next cartoon about Islam's Prophet will give rise to angry mobs visiting havoc upon cities and towns. If the plight of the Rohingyas in Burma could inspire the Azad Maidan riots in Bombay in 2012 for no fault of the Indian state, there is no reason to expect more sanity from the community now.
The activist argument would be to crack down on the rioters and arrest and prosecute those responsible for violence. However, when India is over 500,000 policemen short and over 90 per cent of the police force works over eight hours a day, law and order is bound to suffer. Furthermore, many of these policemen may stand by in sympathy. The training and sufficient arming of the force is also necessary. While the government works to improve the police force, not to mention the jails and judiciary, countless crores and lives would have been lost in damages. Will free speech activists compensate for the losses incurred?
All systems have prerequisites and boundary conditions. The digital age already poses sufficient challenges to nation-states that blind adherence to shibboleths need not compound. Indians have never discussed whether they prefer a Singaporean or even Japanese style democracy to a Western democracy and perhaps that should be first on the agenda before a model is copy-pasted from elsewhere.
Either way, India would still need to substantially upgrade its state capacity and reforms would have to keep those limitations in mind. India certainly has problems with its democracy as well as its free speech provisions — unequal application, state capacity, unprepared citizenry — but to demand a swift imposition of a standard radically alien to the cultural context is simply myopic and an invitation to unrest.