Amartya Sen and Constitutional Autocthony

                            

Amartya Sen believes that 'unfreedoms' were 'heaped on us by our (British) rulers'. In other words, the British destroyed India's potential for Development by imposing the Rule of Law.

He thinks that the Indian Constitution could have removed those 'unfreedoms'. Yet they persist. Why? His answer is that 'we have been too tolerant of intolerance.' 

  Thus, some people were intolerant of homosexuals which is why homosexuality continued to be criminalized even after Alan Danielou complained about this to his good friend Prime Minister Nehru- who vehemently denied that Indian people got up to any such shenanigans. Now, if only some homosexuals had expressed intolerance of heterosexuality, then heterosexuality too would have been criminalized because, Sen tells us, Indians are just too tolerant of intolerance for their own good.

  The laws against Hate Speech and Sedition and so on, too, are just examples of excessive Indian tolerance.

  Sen says' It is... often overlooked that the putting on a pedestal of the sentiments of any religious group — often very loosely defined — is another remnant of British law, primarily Section 295(A) of the penal code introduced in 1927.'

  It will be news to British lawyers that British law put 'on a pedestal the sentiments of' every religious group'- loosely defined or otherwise.  The Govt. of India did pass a law of the said description in 1927, but it was only applicable to India, not to Britain, and, moreover, was mooted by Indian Legislators, not British officials. Thus it was an Indian Law, not a British Law, mooted by Indians not Britishers, and retained by Indians even after Independence.

  An example of Indians using this Indian law to combat racism against Indians was the banning of Katherine Mayo's book 'The Face of Mother India' in the Nineteen Thirties. Interestingly, 'radical' academic Feminists like Mary Daly, but also American journalists like Elizabeth Bumiller, have proudly disclosed their indebtedness to Mayo's scurrilous project which, it should be remembered, had been aided and abetted by white officers of the Raj intent on destroying American support for Indian independence. 

 The question arises, have Western women really made progress thanks to a paranoid Feminism which views Men as Robots programmed to rape? Is it not rather the case that Women have come up by rejecting foolish ideologues and concentrating on constructive, if piece-meal, reform? Do female refugees from the Arab Spring gain anything if their men are depicted as fanatical sex offenders? No. They lose whatever slim chance they have of gaining asylum because, even if single, they are potentially the mothers of Arab sons. Do Indian women gain anything by the depiction Indian men as libidinous monsters? No. They would be deservedly shunned for birthing and nurturing such bestial creatures.

  African American Women never made the mistake of accepting the Racist conception of the over-sexed Black male. White Women who wanted equal opportunities, like Alice Paul, far from demonizing men, Black or otherwise, found a way to remove a patriarchal measure 'protecting' women from 'unpleasant' jobs (actually excluding them for better paid low skill jobs) by getting White Women covered under the 1964 Civil Rights Bill. Clearly Katherine Mayo type racist stereotyping of males was rejected by those American Feminists who genuinely helped their sex to advance. By contrast, 'Academic' Feminists writing Paranoid garbage, have achieved nothing, if not actively hindered their supposed cause.

   Sen, of course, has a long history of hurting poor Indian people- about whom he supposedly cares so much. His very first contribution to Development Economics- the Dobb-Sen strategy- proposed freezing the real wages of the working class to invest the surplus yielded by productivity gains in expanded capacity. Since working people in India were malnourished and in poor health, their real wages had to rise for their productivity not to fall- a fact Sen could have verified for himself just by taking a rickshaw and opening his eyes to look.
  What about his work on Famines, which was cited by the Nobel Commitee? Did he do something to avert or alleviate the famine in Bangladesh? Nope. He wrote a stupid book claiming that, thirty years previously, Bengali workers in the Cities, gaining higher real wages because of the War boom, greedily ate 5 times as much rice as they had been accustomed to, thus causing their cousins in the countryside to starve. 
 More recently his proposals include banning private tuition, homework and the sort of schools which poor people enroll their kids in so as to get a shot at a brighter future. Meanwhile he presided over the snatching of land from Bihari peasants and demands not just autonomy for the white elephant Nalanda University, which had only 13 students, but also American scale salaries and Diplomatic Immunity for its staff- even those holding Indian passports. 

   Sen uses the term 'unfreedom' to mean something which stands in the way of Development. But the 'unfreedoms' he now wants Society to abolish are all that stand between India's poor and utter chaos.
  How do 'deliberate and malicious acts' intended to outrage the religious sentiments of a class of people help Development? If I stand on the steps of a synagogue shouting 'Zieg Heil' how is anyone made better off? If a riot breaks out and lives are lost and the neighborhood goes up in flames, what great benefit accrues to Society? Rich people can retreat into their well guarded compounds or sterile gated communities- what about the poor?

  
  Indian lawyers gave up lucrative careers to join the Freedom Struggle. Many suffered torments in Jail or received severe injuries from the batons of the Police. Such lawyers, within and without the Legislative Assembly, saw the need for a Law punishing malicious attempts to sow Communal Strife and framed and passed such a Law.  In no sense was it an 'unfreedom heaped on us' by our erstwhile rulers. 

  

  Sen believes that- 'A person can be threatened with jail sentence for hurting the religious sentiments of another, however personal — and however bizarrely delicate — that portrayed sentiment might be.'

  Is he correct? Suppose I were to claim that Sen hurts my religious sentiments by refusing to worship my neighbour's cat at Shashthi-avataram, does Sen really believe he would be 'threatened with a jail sentence?' If so, why does he visit India from time to time? It is a crazy country where people are so tolerant of intolerance that, simply to placate a lunatic, who thinks his neighbour's cat is the incarnation of Shashthi, they might put a Nobel Laureate in Jail!

  Sen goes on to say- 'The Indian Constitution, despite claims to the contrary, does not have any such imposition.'

  Yet successful prosecutions under Section 295 (a) continued to be brought even after India asserted Constitutional autocthony- i.e. the notion that all valid laws sprang from the soil and were not 'unfreedoms heaped upon Indians by foreign rulers.

   Article 395, following an Irish precedent, repeals the Indian Independence Act,  thus breaking the chain of legal validity by a revolutionary sui generis & self constitutive assertion with no legal warrant in what went before. This was done deliberately and in accordance with the theory of the legal philosopher Hans Kelsen such that the basic legal ethos, or 'grundnorm', of the previous Colonial regime was violated and overthrown. It follows that no chain of legal validity stretches from the Indian Constitution to the previous enactments of the Crown-in-Parliament.

  Thus it is clear that, at the present time, the Indian Constitution, on the basis of declared autocthony, not inheritance from the British, does indeed have the imposition Sen says it doesn't.

  But Sen has a yet more obviously specious argument to advance. We all know that the internet did not exist in 1950. Online freedom of speech was not an issue. Yet Sen says- 'In a judgment on March 3, 2014, the Supreme Court in fact gave priority to the fundamental right of the people to express themselves, as enshrined in the Constitution.'

   This is utterly misleading. The context was the over-broad Section 66 (a). The Court wasn't concerned with Section 295 at all.

  Sen says 'The Constitution’s insistence on “public order, decency or morality” is a far cry from what the organised political activists try to impose by hard-hitting kick-boxing, allegedly guided by delicate sentiments.' 

  What does he mean? A reasonable guess would be that Sen is referring to Article 19 (2)

 Nothing in sub clause (a) of clause ( 1 ) (which lists various freedoms- like that of expression) 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 sovereignty and integrity of India, 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

  Notice that the Constitution does not enjoin a positive duty to observe public order, decency or morality. It merely says that reasonable restrictions on freedoms can be made for reasons of public order, preserving the sovereignty and integrity of India, etc. Sen may think that 'hard-hitting kick-boxing' is a far cry from something in the Constitution but so is his rhetoric from anything resembling a reasoned argument.

  Sen now says something rather remarkable- 'The Constitution does not have anything against anyone eating beef, or storing it in a refrigerator, even if some cow-venerators are offended by other people’s food habits.' 

The fact is, Article 48 explicitly states 'The State shall ... take steps for ... prohibiting the slaughter, of cows and calves and other milch and draught cattle.'

  This is a Directive Principle, on the Irish model and carries an imperative charge such that beef eating is stigmatized in the same manner as drinking alcohol was stigmatized by Article 47. If Sen had said 'The Constitution does not have any explicit provision against etc' he would have been correct in a certain narrow sense but still wrong as a matter of law.  As things stand, State laws criminalising the sale of beef, which amounts to its bare possession (because the burden of proof falls on the accused), are perfectly Constitutional- indeed, they are in line with a Directive Principle. What is more, these can be cognisable offences- i.e. a police officer who has no private animus against beef-eating would still have to prosecute any offence that came to her notice. There is no question here of someone's 'delicate sentiments' triggering action by the State.  

  It is a matter of dispassionate Law.

  Nevertheless, Sen says- ' The realm of delicate sentiments seems to extend amazingly far. Murders have occurred on grounds of hurt sentiments from other people’s private eating.'

  Murder is a crime heavily punished by the Law. 'Delicate sentiments' are not germane.

  'Children have been denied the nourishment of eggs in school meals in parts of India for the priority of vegetarian sentiments of powerful groups.'

   Children have also been denied the nourishment of venison and the flesh of the wild boar. Vegetarians argue that their own type of diet is more healthy and nourishing. 

  Indeed, it should be remembered, Muslim members of the Constitutional Assembly asked for the cow-slaughter ban to be explicitly linked to Religious Sentiments. Its advocates refused because they genuinely believed that there were sound Nutritional and Economic reasons for the ban which would be clarified with the progress of Science.

  Sen moves on to the Wendy Doniger affair- 'And seriously researched works of leading international scholars have been forced to be pulped by scared publishers, threatened to be imprisoned for the offence of allegedly hurting religious sentiments.'

  The publishers could have brought a test case if the book in question really had been 'seriously researched' in which case they had a defense in Law. They didn't because it hadn't.

   Sen says- 'Journalists often receive threats — or worse — for violating the imposed norms of vigilante groups.'

  Quite true. However, Journalists can report these threats to the Police and secure protection. The late Dom Moraes had a falling out with his Muslim neighbour regarding loud communal prayers in the latter's residence. Rightly or wrongly, the poet felt threatened and got Police protection.

  It is thus not surprising that, as Sen says- 'The Indian media has a good record of standing up against intimidation, but freedom of speech and reporting need more social support.'

  Why? What good is 'Social Support' if thugs turn up on your doorstep and chop your arm off? What you need is Police Protection. You can approach the Court and the Judge can issue an order that such protection be granted.

   Sen concludes his remarks by pointing out that they didn't mean anything in the first place- 'To see in all this the evidence of an “intolerant India” is just as serious a mistake as taking the harassment of people for particular social behaviour to be a constitutional mandate.'

  The problem here is nobody, not even Sen, thought the Constitution mandated 'harassment'. Indeed, only Sen has brought up the matter. 'Intolerant India' however is a popular slogan. Sen explains that it is equally and utterly mistaken. However, everybody already knows this- except perhaps for some impressionable foreigners. The whole thing- like Sen's speech- is just an exercise in windy rhetoric and senile gesture politics.

   Sen admits that 'Most Indians, including most people who are classified as Hindu (including this writer), have no difficulty in accepting variations in food habits among different groups (and even among Hindus). And they are ready to give their children the nourishment of eggs if they so choose (and if they can afford them). And Hindus have been familiar with, and tolerant of, arguments about religious beliefs for more than 3,000 years (“Who knows then, whence it first came into being? … Whose eye controls this world in highest heaven, he verily knows it, or perhaps he knows not,” Rigveda, Mandala X, Verse 129). It is a serious insult to Indians — and to Hindus in general — to attribute to them the strange claims of a small but well organised political group, who are ready to jump on others for violations of norms of behaviour that the group wants to propagate, armed with beliefs and sentiments that have to be protected from sunlight.'

  

   A small but well organised group of politicized academics have been uttering serious insults against Indians in general and Hindus in particular for more than two decades. Sen and his protégé Nussbaum were happy enough to jump on that bandwagon so as to appear to be bravely combating Fascism in India, not to mention some supposed Hindu Terrorism which would throw that of the Islamic variety into the shade. They cried wolf till they were hoarse, but no wolf materialised.

   'The silencing of dissent, and the generating of fear in the minds of people violate the demands of personal liberty, but also make it very much harder to have a dialogue-based democratic society.'

   Oddly, this isn't actually true. People will risk their lives to hear and speak the Truth. Stupid lies, however are what undermine democratic parrhesia.

   'The problem is not that Indians have turned intolerant. In fact, quite the contrary. We have been too tolerant even of intolerance. When some people — often members of a minority (in religion or community or scholarship) — are attacked by organised detractors, they need our support. This is not happening adequately right now. And it did not happen adequately earlier as well. In fact, this phenomenon of intolerance of dissent and of heterodox behaviour did not start with the present government, though it has added substantially to the restrictions already there. M.F. Husain, one of the leading painters of India, was hounded out of his country by relentless persecution led by a small organised group, and he did not get the kind of thundering support that he could have justly expected. In that ghastly event at least the Indian government was not directly involved (though it certainly could — and should — have done much more to protect him). The government’s complicity was, however, much more direct when India became the first country to ban Salman Rushdie’s Satanic Verses.' 

   The real problem facing India is Poverty, which means inter alia not enough policemen and too few Judges to enforce the law. Rushdie didn't get a lot of support from the Paki-bashing British public. He did get first rate British Police protection because Britain was rich enough to afford it. India, dependent on Iranian oil, would in any case have banned his book under the provisions of Article 19 (b) re. 'friendly relations with foreign states'.

   As an Economist, Sen should understand that Economic Growth, not 'Social Support' for prancing ninnies like Rushdie, is what the country needs. In this context, what he labels an 'unfreedom' is actually a salutary measure necessary for the flourishing of individuals and social groups. Students at University need to study hard so as to be able to get good jobs. They don't need to be harassed with demands that they violate the customary morality of their people by attending beef and pork parties or to be put in fear of celebrating their customary festivals- like Durga Puja- because of some baseless claim that it is offensive to worshipers of Mahishasura. Will a Physics student become a better Physicist by getting into fights on issues as infantile as these? If so, we must shed a tear for poor old Einstein. He would surely have found the 'Theory of Everything' if only the Institute of Advanced Study at Princeton had featured such luminaries as Prof. Kancha Ilaiah and Amaresh Mishra.

Let us now look at Sen's prescriptions-

'So what should we do, as citizens of India who support freedom and liberty?' 

1)' First, we should move away from blaming the Indian Constitution for what it does not say.'

  Actually, an Indian who supports unrestricted 'freedom and liberty' should 'blame the Constitution' because it does in fact place restrictions, which Sen himself finds unreasonable, on freedom of expression and mode of dietary sustenance. Sen does not mention the fundamental right to property, so let that go.

  Sen has misread, or not read, the Constitution. Thus this prescription of his is a mere nostrum concocted out of his own fantasy of himself as a second Ambedkar.

2)  'Second, we should not allow colonial penal codes that impose unfreedoms to remain unchallenged.'

  The Indian Constitution proclaims itself to be autocthonous in the manner of that of De Valera's Ireland. Indian jurisprudence holds all Laws currently upheld by the Supreme Court to issue from the soil- not any foreign invasion. A constitutional argument can be made for changing such Laws but that argument's premise can't be itself unconstitutional- viz. it can't deny Constitutional autochthony.
  Sen had previously linked 'unfreedom' with something that hinders both individual flourishing and Socio-Economic Development. Now he equates 'unfreedom' with negative liberty (like the right to offend, no matter how much social discord and economic dislocation it might produce) without producing any intellectual warrant for this sleight of hand. Thus he condemns his own Research Program as meaningless pi-jaw. Indeed, his argument here militates for a Libertarian Anarchism where the strong and powerful can disintermediate the State, relying instead on their own hired goons, and use Hate Speech maliciously and deliberately to divide the weak and poor to keep them in a permanent state of fear and insecurity.

3) 'Third, we should not tolerate the intolerance that undermines our democracy, that impoverishes the lives of many Indians, and that facilitates a culture of impunity of tormentors.'

  Wow! We should be intolerant of intolerance- unless it is our own- because that undermines our democracy. What sort of Kantian maxim is this? 

   What actually facilitates a culture of 'impunity' for 'tormentors' is inadequate resources, considering our large population, for the enforcement of Law and Order. Economic Growth- which Sen has only hindered- is the solution not 'intolerance of intolerance' or some other such non sequitur.

4) 'Fourth, the courts, particularly the Supreme Court, have good reason to examine comprehensively whether India is not being led seriously astray by the continuation of the rules of the Raj, which we fought so hard to end. In particular, there is need for judicial scrutiny of the use that organised tormentors make of an imagined entitlement of “not to be offended” (an alleged entitlement that does not seem to exist in this particular form in any other country). '

  So, Judges who actually know the Law should listen to a guy who does not know the law. Why? What great insight does Sen have to offer? It is that Judges should be careful that defendants don't claim rights which are imaginary. What does Sen think has been happening in Indian Courts up till now? Perhaps he thinks Raj Kapoor says 'Your Honour, under Section 420, my moustache entitles me to be tried as a cat. Miaow, Miaow!' and then Chief Justice Prithviraj responds 'Not guilty by reason of being a cat!'

  Sen knows that there is no Legal entitlement to 'not be offended'. What there is, is a sanction against malicious offending. Sen is inveighing against something he knows to be imaginary- in Sanskrit this sort of rhetoric is dismissed as 'rasabhasa'- i.e. getting emotionally worked up about something known not to exist. Sen is satirising himself in a manner too stupid and obvious to even potentially rank as wit.

5) 'Fifth, if some states, under the influence of sectarian groups want to extend these unfreedoms through local legislation (for example, banning particular food), the courts surely have to examine the compatibility of these legislation with the fundamental rights of people, including the right to speech and to personal liberties.'

The Courts already do this. Why is Sen pretending otherwise? 

   'As Indians, we have reason to be proud of our tradition of tolerance and plurality, but we have to work hard to preserve it. The courts have to do their duty (as they are doing — but more is needed), and we have to do ours (indeed much more is surely needed). Vigilance has been long recognised to be the price of freedom.'

   Stupidity is not vigilance. Sen-tentious prattle is not a duty but a senseless indulgence. Indians need to work hard to rise in the world. But to rise in the world is to have an increased interaction with, and understanding of, the Law- as opposed to tea-shop bromides- as well as to pay more, in taxes, towards the upkeep of the machinery of Justice. Vigilance against external threats and internal subversion is indeed the price of freedom but it's a price best discharged collectively. To engage in a paranoid surveillance of one's own chowkidar- i.e. night-watchman- is to purchase a one-way ticket to the Lunatic Asylum. Yet, this is what Sen's ignorant prescriptions cash out as.

  There is a reason our Constitution declared itself autochthonous- i.e. arising from the soil of the motherland. It permits our Jurists to simply ignore stupid people with swollen heads who live abroad but visit from time to time to say- 'India should change its laws because (a) they were invented by the Anglo Saxons and (b) the Anglo Saxons now approve something else' .

Sen is famous for preferring 'nyaya' (substantive outcomes) to 'niti' (procedural integrity) but his prescriptions, in this instance, amount to little more than adopting a fashionable rhetorical 'riti' more suited to drug addled adolescents experiencing paranoid fantasies of persecution by a secretly Totalitarian State.