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There is an old adage – “Of two evils choose the least”. The makers of the constitution, sagacious people as they were, possibly faced this quandary while framing Article 19. They knew that this could be a double edged sword – on one hand the freedom of the citizens had to be provided for in its deepest interpretation; and on the other hand, there had to be checks and balances to prevent the obvious possibility of misuse that such rights entail.
Indeed, the sheer number of amendments made over time, to this article in order to pre-empt the possibility of the latter, is testimony to the overbearing nature of the seamy side of human conduct. Most of these alterations had to be made within the very first decade itself of the Article coming in. The philosophical dilemma is inherent; and this is not specific to India but evident across the world.
One of the leading members of the committee constituted to draft the Indian Constitution, B.N. Rau, had travelled to the United States, where he had met Justice Felix Frankfurter for a comprehensive discussion on the lines in which Fundamental Rights should be drawn up.
There are strong influences on the Indian Constitution from U.S. principles, especially in the Fundamental Rights – even, the American doctrine of “due process” which had been rejected by the framers of our Constitution at the time of its enactment; had later found its way in, through judicial pronouncements.
Some observations of persons of letters from that country relating to the underlying principles reminiscent of our Article 19 are noteworthy. On one hand, we have Madeline L’Engle saying – “Because to take away a man’s freedom of choice, even his freedom to make the wrong choice, is to manipulate him as though he were a puppet and not a person.”
And on the other hand we have J. Martin Kohe cautioning – “You possess a potent force that you either use, or misuse, hundreds of times every day.” With Jon Ronson chipping in – “Misuse of privilege is seen as the worst sin.” And Adam Hamilton summarizing – “While some misuse their freedom to perpetrate evil, millions respond by feeling compelled to use their freedom to do good.”
From a constitutional angle, the position can be ascertained from the words of Thomas Hardiman – “Those who drafted and ratified the Second Amendment were undoubtedly aware that the right they were establishing carried a risk of misuse, and States have considerable latitude to regulate the exercise of the right in ways that will minimize that risk. But States may not seek to reduce the danger by curtailing the right itself.”
Similar view was adopted by the makers of the Indian constitution as well; the need to balance both sides was reflected in the enabling provisions of 19(1) being followed immediately by the limiting provisions of 19 (2 to 6). But over time, the ingenuity of the crooked human mind got the better of it and have found ways to subvert and exploit the chinks in the provisions.
Thus, we have freedom of speech bringing in hate speeches for ulterior political gains; freedom of assembly being given the shape of rallies and road blockades holding daily life to ransom; trade unions being used to stoke labour militancy leading to closures, lockouts and unjust enrichment of union leaders; freedom of movement and residence as a means for crass urbanization steamrolling natural rural life; freedom of trade in dishing out junk food, intoxicants, pesticide-laced vegetables and hormone-injected livestock; and freedom of occupation to promote privatization of crucial medical care leading to affordability issues for many.
These are just to mention a few – only the tip of the iceberg perhaps. The gravest concern is possibly the juggernaut effect that is getting built up day by day – exploitation of loopholes by some is encouraging newer takers for such unwholesome means. Thus, the unfortunate fact remains that Article 19, instead of conferring the presumable salutary effect of society at large; is effectively proving to be a breeding ground for sharks – people in search of a fast buck willing to throw scruples and niceties to the wind.
But surely, such an important fundamental right cannot be given a go by; and at the same time we cannot go on lengthening the restrictions in 19(2) onwards – in the pursuit of plugging ever-new holes that keep cropping up. Perhaps it would not even be prudent to plug up all the holes – it is a proven fact that liquor ban leads to bootlegging and tobacco ban leads to increased sale of contraband narcotics.
Outright proscription would lead to difficulty in enforcement – monetary costs would go up in terms of the need for more personnel, technology and equipment. Even social costs may be too high – people may turn to armed hostilities to get their demands met leading to chaos, encrypted social media to disseminate propaganda which cannot be controlled and consumption of hooch leading to mass poisoning. All these actual and possible afflictions undermine the very bedrock of responsible use of freedom; that had underpinned the conferral of these rights to the people.
The frustrating situation is akin to what U.S. President Harry Truman had summarized in his famous quote in the context of pressing economic problems – “Give me a one-handed Economist. All my economists say ‘on one hand…’, then ‘but on the other hand…”
Perhaps for now, the only way is to hope that sanity would prevail in the larger plane of social goodwill at some inflection point; and a new horizon would evolve for our progeny. Let us not forget the basic belief reposed on the citizens by the framers of our Constitution – that the rights which they conferred with the trust for responsibility would not be misused.
To conclude, the words of M. K. Hobson come to my mind; with the aspiration that realization of the same will gradually sink in to all and sundry; even though it may take time and the route may be tortuous – “I’ve just always been fascinated by what our belief can do, and what happens when we misuse that”. Let us all look forward to that day; when good sense would dawn – let’s await our tryst with destiny.
-This article is brought to you in collaboration with Sourish Roy from Indian Institute of Technology (IIT), Kharagpur.