Much has been spoken about Article 19 of the constitution along with it's various clauses and restrictions, made palatable with word "reasonable", that it imposes to the freedom of speech and expression. The freedom of expression came bundled with the original constitution, the restrictive clauses were added as part of the 1st amendment to the constitution a little more than one year after it was enacted. Following reasons were cited for bringing in the first amendment curbing freedom of expression (Reference):
- The citizen's right to freedom of speech and expression was found to be so comprehensive as not to render a person culpable even if he advocates murder and violence.
- In other countries with written constitutions, freedom of speech and of the press is not regarded as debarring the State from punishing or preventing abuse of this freedom.
That it takes two third majority in Parliament to pass any amendment to the constitution, and the fact that it came into force and have remained unchallenged since, proves that there is a larger consensus on state's discretionary powers to impose restrictions on free speech as "the state" deems reasonable, it doesn't matter that a minority thinks that the discretionary powers should rest with the individual rather than the state or similar line of thought favoring absolute free speech. I belong to that minority.
One might argue that why do I need absolute free speech when the probability of anything worthwhile or original, coming out of it is slim? My contention is that people don't hurt other's sensibilities not because the law restricts that, and conversely, people who normally don't, won't start hurting other's sensibilities in the absence of those restrictions either. Every law is based on the premise that "Man is a rational being", except the law restricting freedom of expression, which is based on the premise that only the state is capable of deciding what is rational. Do we need laws to define freedom? Or do we need laws to define restrictions on freedom? IMO freedom of "anything" should be the default position, putting it in words and getting everyone to sign on it is an exercise in futility. That exercise should be carried out for defining restrictions on freedom, and the onus should be on the state and those who advocate restriction to justify the restrictions being imposed.
No person in his right mind, will either advocate or support anyone advocating violence and murder, but isn't putting restrictions on everyone's fundamental right of free speech a very crude way of preventing such hate speech? Have we been able to prevent any of the riots from taking place, fatwas from being declared or convict those who incited these riots on the basis of restrictions on free speech? It's just one example of the ineffectiveness of these restrictions. However what "has" been achieved is a long list of books and other artistic expressions banned by the state on demands of various pressure groups who have got all the more emboldened after the state relented to their demands of curbing freedom of expression. So if enough number of people get annoyed by an opinion, questioning a belief or a piece of expression artistic or otherwise, or if they break enough Public furniture they can get the state to ban that piece of work. Isn't it ironical that a constitutional amendment that espouses curbing a particular type of violent behaviour ends up rewarding the same?
Image from here
Of all the current raging issues, AFSPA is one of the most debated and probably one of the least understood as well (The Act can be accessed here). Much has been said about it in various Op-eds, Primetime TV Debates, Tweets and Blogs. The most visible symbol of Anti-AFSPA side of the debate is the fast undertaken by Irom Chanu Sharmila in Manipur, who is fighting for it's removal since last 11 years. J&K CM Omar Abdullah stoked the debate further by pushing for it's removal from J&K. The Mainstream media both TV and Print, have been increasingly taking an Anti-AFSPA stance and building up a rhetorical crescendo. Within govt itself differences of opinions have emerged which is well known.
Last couple of years have seen a new-media revolution of sorts where more and more people are taking to not only expressing their opinions on issues such as AFSPA, but also made it possible for them to participate in debates. And coupled with ease of accessibility of relevant information, the natural corollary to such a progression should have been an informed debate on such issues instead of the mainstream media pushing rhetorical one sided arguments and Op eds down our throats through a one way communication. However despite the ease of accessibility of information there appears to be a lot of misconception surrounding AFSPA that needs to be dispelled.
There are two major misconceptions about AFSPA that shape Public Opinion:
1. Any Army Jawan can open fire to kill anybody with impunity.
2. Anybody can be arrested for an indefinite period.
AFSPA doesn't give powers to any or every Army Jawan to open fire, make arrests or carry out search. Only a person commanding at least a Section can order such an act (Sec 4). Although arrests can be made under AFSPA but the person detained has to be handed over to Police with least possible delay (Sec 5). Many provisions in the Act are not put to use by the Army depending on circumstances or it's assessment. For e.g. Prohibition of assembly of five or more persons (Sec 4(a)) is not being enforced in any of the area under AFSPA. And Army has not carried out any operations whatsoever in many cities including Srinagar and large areas within AFSPA zone since many years.
Since it's inception in 1958 Army working under AFSPA has helped restore democracy and democratic institutions in states like Punjab, Mizoram, Nagaland, Assam, Manipur and J&K which is a commendable feat and it proves the merits of the Act. What we should keep in mind is that the situation in insurgency affected areas is not a law and order problem but akin to a war being fought on at least two planes, one is on the physical plane where opposite forces fight for control of territory where their writ could run, the other plane is psychological, over perception and projection of an image conducive to their respective causes, and they are not mutually exclusive. If AFSPA is removed, it projects a positive image that democracy peace and normalcy has returned, it is capable of giving us a momentary high that we have won it over the psychological plane, not to mention thumbing nose at the insurgents. But are we looking for a momentary high or a long term sustainable peace? Too much focus on projecting a positive image while undermining the work being done on ground may not be best for a lasting solution. IMO it's better to win on the physical plane, including winning hearts and minds, before we start celebrating over the other.
The common ground between the supporters and detractors of AFSPA is that, AFSPA can only be a temporary phase to bring normalcy to a disturbed area, restore democratic institutions and create an atmosphere where these institutions can function normally. The main disagreement is on the timing of it's removal. Increasingly, the public, rightfully, is emerging as an important stakeholder whose opinion has started to matter a lot in issues such as AFSPA. Some cynicism apart, the public including those in AFSPA zone like J&K and North East as well have done well to resist reacting in a knee jerk fashion to the rhetorical arguments and appeals to emotions through fast and imagery.
Image from Here
