Sunday, April 30, 2017

A Definition of An Evolving State

I am not sure if this idea has ever been stated in these terms, but it just occurred to me today morning.

This came to me while reflecting on the two first amendments in the two largest democracies in the world: India and the United States.

The First Amendment to the constitution of the United States guarantees free speech:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The first amendment to the constitution of India restricts free speech:
Nothing ... shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.
As is obvious, the first amendment to the US constitution radically curtails the power of the state, while in case of India, the first amendment radically expands the power of the state.

And it is equally clear that the right to free speech in the United States is more libertarian than the one in India.  There is a sound reason why people flee oppressive regions and regimes and want to migrate to United States.  It is partly to have a "better life" in terms of prosperity, but it is also indubitably to live a life of more dignity and freedom.  Many sociologists would contend that the two are inextricably related.

Especially when it comes to intellectual creativity, scientific and ideological progress, and a critique of prevailing paradigms, the protection of free speech can be easily seen as the fundamental building block of a society.

Hence, this definition:
The evolution of a nation-state can be measured by the limits it places on its powers, and by the powers and protections it thereby guarantees to its citizenry against its own government.
By this measure, there is only one significant progressive event in India in the seventy years since its independence, which is the passage of the Right to Information Act.  This was enacted by the Parliament of India in 2005.  It is not ideal, and it has many loopholes.  But in a rare deviation from India's legislative narrative, it places a burden on the state.  It confers a new right to its citizens, and prohibits the state from infringing on that right by prescribing penalties on the state in case of such infringement.  It also sets up a somewhat independent body to handle disputes about the execution of this right.

I fail to find any other significant law in India which similarly, and more to the point, effectively limits the power of the state.  It is one thing to blithely state some new right, but it is an entirely different matter to guarantee that right by a quick process of redress.

I am at a loss to find a right in India which can be enforced effectively by its citizens.  This is somewhat due to the dysfunctional courts, but even the intent seems to be missing from the statement of these rights.  The intent is to pay lip-service to a right, while keeping the right ambiguous enough to grant a lot of leeway to the state and others to come after you if you truly exercise that right to their consternation.

There have been many laws passed for the benefit of minorities, or of women, but most such laws confer a right to one section of the population to the detriment of another.  Such laws seek to re-balance power, for better or worse, between two sections of the population, not between the state and the citizenry.  In no way does do these laws confer a right to the citizenry while taking a power away from the state.

For example, the SC/ST atrocities act, which among other things makes it a crime to use a pejorative or expletive when addressing people from certain tribes obviously grants a right to those tribes, but inhibits the liberty of others.  Similarly, the Domestic Violence act which tries to guarantee domestic peace and happiness to women does a flagrant disservice to men.  Not just because men are seen to be never the victims and always the aggressors, but also because the state confers this right on women and thereby imposes a duty on men and their families (e.g. of maintenance, and of keeping their wives or daughters-in-law in good humor, et al).

Leaving aside the fact that it was already a crime to intimidate anyone, be it a minority community member or one's domestic partner, these laws are regressive according to my definition.

In fact, such laws make the state more and more powerful by bringing hitherto unaddressed activities within the purview of its powers.  They further limit the acts of its citizenry and further empower the state to go after and prosecute its population.

A truly progressive law, under my definition, would be to guarantee something to the citizenry and making the state not just the guarantor, but also the party liable to be punished in case of the infringement of that right.

Now one may ask: "What about subsidies and largesse?"  Aren't they a right conferred on the citizens making the state liable?  Not at all.  The state is not a generator of wealth, so to begin with it had no right to confer that wealth on an individual or community of its choosing.  In such cases, the state is using the wealth of one section of the population to benefit another.  In fact if a state uses this kind of "right" too often, it is usually a sign of corruption, nepotism and cronyism.

If we agree that a progressive state is one that is a freer state, and if we regard liberty as the fundamental measure of human progress, it stands to reason that India has a long, long way to go.  Not just that, but India has been regressing by passing more and more laws to empower the state.

True progress is that which promotes liberty, and on that measure, India is not significantly better today than it was in British times, and quite likely worse.

No comments: