It is time we moved an amendment to the Constitution of India and renamed our Articles which have found a place in Part III, i.e from 12 to 35, as FUNDAMENTAL LIBERTIES instead of FUNDAMENTAL RIGHTS!
One has to understand Hohfeld’s expatiation of Rights and Liberties. The following is excerpted from WIKIPEDIA, which clarifies the issue!
Hohfeld argued that right and duty are correlative concepts, i.e. the one must always be matched by the other. If A has a right against B, this is equivalent to B having a duty to honour A’s right. If B has no duty, that means that B has a privilege, i.e. B can do whatever he or she pleases because B has no duty to refrain from doing it, and A has no right to prohibit B from doing so. Each individual is located within a matrix of relationships with other individuals. By summing the rights held and duties owed across all these relationships, the analyst can identify both the degree of liberty — an individual would be considered to have perfect liberty if it is shown that no-one has a right to prevent the given act — and whether the concept of liberty is comprised by commonly followed practices, thereby establishing general moral principles and civil rights.
Let us see whether Kamal Haasan’s movie had a RIGHT or merely a LIBERTY. When the movie VISWAROOPAM passed the Central Board of Censors, the National perspective must have been factored in and naturally the amity of Indian people, in the opinion of the members of the Censor Board, is NOT likely to be threatened. Thereafter the movie acquires a “RIGHT” in the eyes of a common man to be screened. But is this a RIGHT? According to Hohfeldian analysis the passage obtained from the Central Board of Film Certification is merely a LIBERTY, as an Executive Magistrate (read District Collector) could issue an order under Section 144 of the Criminal Procedure Code and prohibit the cinema owners from screening the movie. Therefore this RIGHT of the movie maker can be thwarted by an executive order and the movie maker could find other avenues of screening his movie. In effect the movie maker’s RIGHT does not cast a DUTY on the STATE to protect his RIGHTS, therefore his RIGHT AS A MOVIE MAKER IS DOWNGRADED TO A LIBERTY!
The next is the Freedom of Speech, which is enshrined as a RIGHT under Article 19 of the Constitution. Mr Ashish Nandy, in his speech at Jaipur Literary Festival, makes a point which i have understood as “AS OF NOW CORRUPTION IS NOT LIMITED TO THE UPPER CASTE, BUT THE SCs, STs and OBCs HAVE ALSO INCLUDED THEMSELVES IN CORRUPT PRACTICES AND ARE ENJOYING THE ILLEGAL FRUITS UNLIKE OLDEN TIMES.” But as the wording could be construed differently, an FIR has been filed against him under Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act!
Let us see if Mr. Ashish Nandy has committed a crime warranting an FIR? Firstly, the JLF is supposed to be a meet of intellectuals, literary figures and artistes who participate and put forward their HYPOTHESES, which are contested, debated and then accepted or rejected or put in abeyance depending on the outcome of such brainstorming by intellectuals. The audience and the spectators (those who come to watch but do not understand a word uttered there!) are allowed, so that though they do not have the reputation to participate at that level, could be the audience and form opinions based on the free flow of opinions. A LITERARY FESTIVAL is NOT A SCIENTIFIC MEET neither was JLF envisaged to be a forum for exciting the political class. However, even those who have not shown any interest in LITERARY DEBATES have suddenly sprung to life and are baying for the blood of a literary figure. Mr. Ashish Nandy’s RIGHT to free speech here seems to have DWINDLED INTO LIBERTY OF SPEECH. If the event was a political speech, then i can understand that such words could inflame the passions of a section of the society and lead to undesirable consequences. But in a Literary Festival…….?
Suddenly from nowhere an MLA belonging to a political party (not all MLAs have to belong to a party!) makes a POLITICAL statement, stating therein that “Instead of the Babri Masjid, if the kar sevaks had gone towards the TAJ MAHAL to dismantle it, he himself would have led that mob! “ Supposing i were to be a DEVOTEE OF ROMANCE and the TAJ were to be a symbol of LOVE FOR A WOMAN BEYOND HER EARTHLY LIFE, should I take offence and file an FIR in a court where I have been hurt ‘religiously’ under section 295A of the Indian Penal Code? Well, the reader might think I am presuming ROMANCE to be a RELIGION, when CRICKET can be a religion and a puny human being can be called a GOD, why not ROMANCE which sustains the spirit and life of most humans?
Further, when the then Chief Minister of Tamizh Nadu cited Kambar’s RAMAYAN and when someone in Uttar Pradesh relied on Valmiki’s RAMAYAN and took offence at the utterance of Mr. Karunanidhi with regard to Lord Rama, why should I not take offence?
I do NOT take offence because an IDEA HAS TO BE COUNTERED ONLY BY ANOTHER IDEA, AS AN IDEA UNTREATED SHALL RESURFACE AGAIN IN FUTURE IF NOT SETTLED BY ANOTHER IDEA!
Filing FIRs and attempting to settle IDEAS through violence can at best make an idea to retreat strategically and resurface when the ecosystem becomes conducive for a dialogue. NO ONE CAN KILL AN IDEA. LET US FACE IT SQUARELY AND FORM AN INFORMED, FAIR and JUST OPINION ON IT!
I would like to cite an apocryphal story which is supposed to have happened in Tamizh Nadu politics: during the Chief Ministership of Ms. Jayalalitha, an invitation for the WORLD TAMIZH CONGRESS at THANJAVUR was sent to Mr. Karunanidhi addressed as “EX-MLA”. Mr. Karunanidhi did not fret and fume and attempt to get political sympathy, instead he is supposed to have returned the invitation to the then Chief Minister Jayalalitha, addressing the invitation as “to EX-ACTRESS“. That is countering an IDEA linguistically and not emotively!
We have lost this sense of humour, which is tragic- so my solution is that since we have become an “INTOLERANT LOT” let us name Part III of the Constitution of India as FUNDAMENTAL LIBERTIES!