The Hindu Editorial : 17-08-2017

The architecture of censorship

Censorship exists in India to the extent it does because it is both easy and efficient to accomplish

Independence Day is an occasion to celebrate freedom from a colonial regime that not only cast chains of economic and political bondage upon Indians, but also fettered their freedom to think, dissent, and express themselves without fear. Demands for a right to free speech, and for an end to political, cultural and artistic censorship, were at the heart of our freedom struggle, and which culminated in the celebrated Article 19(1)(a) of the Indian Constitution. Last week, however, two events revealed that 70 years after Independence, the freedom of speech still occupies a fragile and tenuous place in the Republic, especially when it is pitted against the authority of the State. The first was the Jharkhand government’s decision to ban the Sahitya Akademi awardee Hansda Sowvendra Shekhar’s 2015 book, The Adivasi Will Not Dance, for portraying the Santhal community “in bad light”. And the second was an order of a civil judge at Delhi’s Karkardooma Court, restraining the sale of Priyanka Pathak-Narain’s new book on Baba Ramdev, titled Godman to Tycoon.
Neither the ban on The Adivasi Will Not Dance, nor the injunction on Godman to Tycoon, are the last words on the issue. They are, rather, familiar opening moves in what is typically a prolonged and often tortuous battle over free speech, with an uncertain outcome. Nevertheless, they reveal something important: censorship exists in India to the extent it does because it is both easy and efficient to accomplish. This is for two allied reasons. First, the Indian legal system is structured in a manner that achieving censorship through law is an almost costless enterprise for anyone inclined to try; and second, the only thing that could effectively counteract this — a strong, judicial commitment to free speech, at all levels of the judiciary — does not exist. Together, these two elements create an environment in which the freedom of speech is in almost constant peril, with writers, artists, and publishers perpetually occupied with firefighting fresh threats and defending slippery ground, rather than spending their time and energy to transgress, challenge and dissent from the dominant social and cultural norms of the day.
The Jharkhand ban
The Jharkhand government’s ban on The Adivasi Will Not Dance followed public protests against the writer, with MLAs calling for a ban on the book on the ground that it insulted Santhal women. The legal authority of the government to ban books flows from Section 95 of the Code of Criminal Procedure (which, in turn, was based upon a similarly worded colonial provision). Section 95 authorises State governments to forfeit copies of any newspaper, book, or document that “appears” to violate certain provisions of the Indian Penal Code, such as Section 124A (sedition), Sections 153A or B (communal or class disharmony), Section 292 (obscenity), or Section 295A (insulting religious beliefs). Under Section 96 of the CrPC, any person aggrieved by the government’s order has the right to challenge it before the high court of that State.
The key element of Section 95 is that it allows governments to ban publications without having to prove, before a court of law, that any law has been broken. All that Section 95 requires is that it “appear” to the government that some law has been violated. Once the publication has been banned, it is then up to the writer or publisher to rush to court and try and get the ban lifted.
The CrPC is therefore structured in a manner that is severely detrimental to the interests of free speech. By giving the government the power to ban publications with the stroke of a pen (through a simple notification), the law provides a recipe for overregulation and even abuse: faced with political pressure from influential constituencies, the easiest way out for any government is to accede and ban a book, and then “let the law take its own course”. Furthermore, litigation is both expensive and time-consuming. Section 95 ensures that the economic burden of a ban falls upon the writer or the publisher, who must approach the court. It also ensures that while the court deliberates and decides the matter, the default position remains that of the ban, ensuring that the publication cannot enter the marketplace of ideas during the course of the (often prolonged and protracted) legal proceedings.
The Karkardooma injunction
The most noteworthy thing about the Karkardooma civil judge’s injunction on Godman to Tycoon is that it was granted without hearing the writer or the publisher (Juggernaut Books). In an 11-page order, the civil judge stated that he had given the book a “cursory reading”, and examined the “specific portion” produced by Baba Ramdev’s lawyers in court which he found to be potentially defamatory. On this basis, he restrained the publication and sale of the book.
In this case, it is the judicial order of injunction that is performing the work of Section 95 of the CrPC. Effectively, a book is banned without a hearing. The book then stays banned until the case is completed (unless the writer or publisher manages to persuade the court to lift the injunction in the meantime). Once again, the presumption is against the rights of writers, and against the freedom of speech and expression.
In fact, the Karkardooma civil judge’s injunction order is contrary to well-established principles of free speech and defamation law. Under English common law — which is the basis of the Indian law of defamation — it is recognised that injunctions, which effectively amount to a judicial ban on books, have a serious impact upon the freedom of speech, and are almost never to be granted. The only situation in which a court ought to grant an injunction is if, after hearing both sides in a preliminary enquiry, it is virtually clear that there could be no possible defence advanced by the writer or publisher. The correct remedy, in a defamation case, is not to injunct the book from publication on the first hearing itself, but to have a full-blown, proper trial, and if it is finally proven that defamation has been committed, to award monetary damages to the plaintiff.
In 2011, the High Court of Delhi held that this basic common law rule acquired even greater force in the context of Article 19(1)(a) of the Constitution, and reiterated that injunctions did not serve the balance between freedom of speech and a person’s right to reputation. The high court reaffirmed the basic principle of our Constitution: that the presumption always ought to be in favour of the freedom of speech and expression. In this context, the Karkardooma civil judge’s order granting an injunction before even hearing the writer and publisher is particularly unfortunate.
The way forward
While the banning of The Adivasi Will Not Dance reflects the structural flaws in our criminal law that undermine the freedom of speech, the injunction on Godman to Tycoon reveals a different pathology: even where the law is relatively protective of free speech, it will not help if judges — who are tasked with implementing the law — have not themselves internalised the importance of free speech in a democracy.
The first problem is a problem of legal reform. The solution is obvious: to repeal Sections 95 and 96, take the power of banning books out of the hands of the government, and stipulate that if indeed the government wants to ban a book, it must approach a court and demonstrate, with clear and cogent evidence, what laws have been broken that warrant a ban. The second problem, however, is a problem of legal culture, and therefore, a problem of our public culture. It can only be addressed through continuing and unapologetic affirmation of free speech as a core, foundational, and non-negotiable value of our Republic and our Constitution.
Gautam Bhatia, a Delhi-based lawyer, is the author of ‘Offend, Shock, or Disturb: Free Speech Under the Indian Constitution’

Reading Kim Jong-un’s mind

At least the U.S. administration must do this in order to defuse the current crisis

Is North Korea’s leader Kim Jong-un a “crazy fat kid” and a “total nut job”, as U.S. President Donald Trump has described him, or is he a rational leader who makes his foreign policy choices to protect the interests of his regime? Every discussion around the North Korean nuclear crisis could eventually settle around this basic question. If he is an irrational, crazy and impulsive leader, it’s difficult to reach a diplomatic settlement with him. A military solution to the North Korean issue is even more difficult and risky as Mr. Kim could use the country’s nuclear arsenal in retaliation. That’s a cul-de-sac. On the other hand, if there’s a strategy behind Mr. Kim’s perceived madness, it at least opens avenues for further engagement.
Overcoming an asymmetry
Most accounts of the Korean crisis are written from the perspective of Pyongyang’s rivals where an erratic, despotic regime is portrayed as relentlessly pursuing dangerous weapons in defiance of international public opinion and sanctions. But if one looks at the whole issue from a North Korean security point of view, it is not hard to find a method behind the North’s actions. It’s a country that’s been technically at war with its neighbour for almost seven decades. There are also multiple U.S. bases in South Korea, the Philippines, Japan, Guam Island and a naval presence in the East China Sea and the Pacific, in the vicinity of North Korea. In terms of conventional military might, the impoverished North knows that it’s no match for the U.S. This has forced it to make extreme choices to overcome the asymmetry in capabilities.
This strategic insecurity was reinforced in the 1990s when Russia became a directionless, timid, floating power after the disintegration of the Soviet Union and China gradually moved closer to the U.S. These were the only allies North Korea had. In 1992, China established formal relations with South Korea, which deepened Pyongyang’s concerns. Adopting a two-pronged strategy, it fast-tracked its missile and nuclear programmes and expressed a willingness to negotiate. The purpose, as it seems now, was to prompt world powers, mainly the U.S., to sit down to talk and make assurances on security. This strategy met with success as the Clinton administration responded constructively. In 1994, Pyongyang agreed to freeze the operation and construction of nuclear reactors in line with the Agreed Framework signed with Washington. In return, the U.S. promised two proliferation-resistant nuclear reactors.
The George W. Bush administration took a hawkish stance towards Pyongyang. In 2002, Mr. Bush lumped North Korea with Iraq and Iran in the “Axis of Evil”. Pyongyang withdrew not only from the Agreed Framework but also from the NPT, and accelerated efforts to gain nuclear weapons. With President Barack Obama following the tested and failed policy of sanctions and intimidation, the North steadily expanded its military capabilities. And now, Donald Trump has to deal with a North Korea equipped with nuclear bombs and intercontinental ballistic missiles that can reach U.S. territory.
Both the diplomatic and military options are now a lot more difficult than those in the early 1990s. A limited attack by the U.S. could snowball into a full-fledged nuclear war, threatening millions in East Asia. The North’s nuclear facilities are spread across its mountainous regions making it difficult to destroy them. So are the country’s missile capabilities, which reportedly have mobile launchers that could survive an attack on defence bases. There are thousands of pieces of artillery along the Demilitarised Zone that could be used to attack Seoul which lies roughly 50 km from the border.
For a diplomatic solution, the North will have to make great compromises. In the 1990s, North Korea was an aspiring nuclear power and all it needed to surrender was its ambition in return for security. Now that it is a nuclear power, will it abandon its nuclear weapons in return for security assurances? It’s unlikely to happen as the examples of Iraq and Libya show. Both Saddam Hussein and Muammar Qadhafi, respectively, had given up their nuclear ambitions, saw their regimes toppled by Western invasions and then were killed. Even the example of Iran would not be encouraging for North Korea. Tehran agreed to curb its nuclear activities and open its reactors for routine international inspections in return for the lifting of international sanctions during the Obama presidency. The Trump administration has taken an extremely hostile view, added more sanctions on Tehran, joined hands with its regional rivals, and even threatened to cancel the certification of Iran’s compliance with the nuclear deal. Mr. Kim would be asking himself how he could trust American security assurances even if they come by.
China template
North Korea would rather prefer a Chinese model. China exploded its first nuclear bomb in 1964, which led to it being treated as a rogue nuclear power. But China was accepted into the mainstream international order in the 1970s. Even the U.S., its main rival, initiated a diplomatic process with Beijing. Mr. Kim may be betting on both his nuclear deterrence as well as his chances of being accommodated as a nuclear power in the international system, a game of chicken scenario. Conflict is inevitable if the U.S. and North Korea keep going down the path they are now on. If one swerves, the other will benefit. But will both swerve for a tie and relaunch a diplomatic process afresh?

Trump’s misstep

U.S. President fails to draw a moral distinction between neo-Nazis and counter-protesters

White nationalist rallies are not new in the United States. But the demonstrations in Charlottesville, Virginia, on Friday and Saturday were unprecedented in recent American history in terms of the number of participants and the scale of violence that followed. Those who turned up in Charlottesville, barely 200 km from Washington DC, have sent a clear message that the far right in the U.S. is ready for a long battle on a white supremacist agenda. On Friday night they took out a torch-bearing procession reminiscent of the Hitler Youth night rallies, shouting, “blood and soil”, protesting plans to remove a Confederate monument from the city. Saturday’s demonstration turned violent as counter-protesters mobilised an equally strong group against the white nationalists. This took a tragic turn when a demonstrator rammed a car into the counter-protesters, killing a woman and injuring several others. For years, the Alt-Right movement of white nationalists has been mobilising using online platforms. They supported Mr. Trump in the November election. Steve Bannon, the former editor of Breitbart News that gave a “platform” to the Alt-Right, was chief executive of Mr. Trump’s campaign, and is now his chief strategist. With Mr. Trump and Mr. Bannon in the White House, the Alt-Right clearly feels emboldened. David Duke, a former “Imperial Wizard” of the Ku Klux Klan, who took part in the Charlottesville rally, admitted as much in plain words when he said, “It is the fulfilment of President Donald Trump’s vision for America.”
Mr. Trump could have shown leadership by instantly denouncing the ultra-nationalists and upholding values enshrined in the Constitution. But he failed the test, completely. He first condemned the violence “on many sides”. Two days later, apparently under pressure from his team, he criticised “the KKK, neo-Nazis, white supremacists and other hate gangs”. But within a day he made another U-turn, holding both “the Alt-Right and the Alt-Left” responsible for Saturday’s events. In effect, Mr. Trump failed to make a moral distinction between the neo-Nazis who rallied with swastikas, Confederate battle flags and anti-Semitic banners and those who assembled to protest that intolerance. Mr. Trump also launched a Twitter attack against Merck CEO Ken Frazier, an African-American, who quit the President’s advisory council over his response to the Charlottesville violence. And he told Fox News that he was “seriously considering” a pardon for Joe Arpaio, a former Sheriff who faces allegations of racial profiling and discriminatory police conduct. Organisers of the Alt-Right demonstration have thanked Mr. Trump for his “honesty and courage” and vowed to hold many more such rallies. Unfortunately, the U.S. President does not see such endorsement from neo-Nazi groups as a problem.

The private route

We need to find ways to make market-based health care more affordable

NITI Aayog’s recent proposal for the partial privatisation of district-level government hospitals has been criticised for commercialising health care. Under the proposal, private hospitals will be allowed to bid for 30-year leases that give them control over portions of government hospitals dedicated to treating non-communicable diseases. Critics argue that private hospitals focussed on profits will do no good to the poor who can’t pay for their services, so the government must step in to provide free health care.
Affordability is indeed the major issue preventing poor Indians from getting proper health care. Free health care provided by the government, however, is not the real solution to the problem. Governments often have very little incentive to provide quality health care to many citizens. This is because, in politics, it is the interests of powerful groups that get the most leverage. The poor, for various reasons related to electoral politics, often get left out of the race to influence their governments. For instance, politicians have very little incentive to care about the needs of an individual voter since the impact of a single vote on the election result is essentially minuscule. In the marketplace, on the other hand, private hospitals have huge monetary incentives to proactively cater to the demands of their customers. Each consumer’s currency note holds equal weight to a private hospital that seeks profit. This makes market-based health care a fundamentally superior way to deliver health services to the poor.
An issue of ‘how to’
The focus then should be on how to make market-based health care more affordable. The standard assumption in this regard is that for-profit health care works against the interests of the poor by making health care more expensive. So various regulations aimed mostly at reducing the profits of health-care investors and lowering the costs to consumers are imposed on investors. Unfortunately, these regulations, by denying investors the opportunity to make profits by providing health care, actually end up making health care more unaffordable. An investor facing a swathe of regulations capping his returns, for instance, has very little incentive to set up hospitals, produce life-saving drugs, or invest in medical education. This, in fact, works against the interests of the poor by reducing the supply of health care and increasing its price. The only real way to make health care affordable then is to increase its supply sufficiently, which in turn will lead to lower prices. This can only be achieved when health care is deregulated and investors are allowed to seek profits in an honest manner. In fact, this is how any good or service gets cheaper over time. As more investments are made into a sector in search of profits, the increased supply leads to lower prices for consumers and lower returns for investors.
Sadly, the thinking that health care is too essential to be left to the market has prevented the health-care market from working like any other. It is no wonder then that goods such as cell phones and cars, which are considered luxuries and thus left to the market, have become affordable to a larger population over time. At the same time, health care has largely remained unaffordable to the vast majority of people.
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