Clampdown defies civil liberty

Clampdown defies civil libertyClampdown defies civil liberty
Highlights

The recent actions of the government of India, in abrogating the provisions of Article 370 of the...

The recent actions of the government of India, in abrogating the provisions of Article 370 of the Constitution of India, dividing the erstwhile State of Jammu and Kashmir into two Union Territories, and clamping down a regime of near curfew in the entire region, have become the talking point of the country.

In fact, the decision of the Modi government to rescind the Article is as momentous as that of the Nehru government's was in inserting it in the first place! The ruling party's claim that Kashmir has finally been freed from the clutches of the restrictions associated with the Article 370, and the Opposition's complaint that what little freedom was given by that Article has now, in fact, been taken away, have only led to confusion getting worse.

For over 70 years now the Kashmir issue has remained a major concern for the Central government. While much can be said on either side about the nature of the action, and the manner in which the Central government carried it out, it is proposed, in this column this week, to confine the discussion to the impact such measures have on the fundamental rights to speech and association that is guaranteed by the Constitution to all citizens.

Communication is a fundamental social process, a basic human need and the foundation of all social organisations. In today's information society, it has become a central imperative.

The World Summit on the Information Society has, in fact, affirmed that all people have the right to freedom of opinion and expression without interference, and to seek, receive and impart it. Needless to say, such freedom will always need to remain subject to the imposition of reasonable restrictions on it.

Article 19 (2) of the Constitution of India, while guaranteeing the fundamental right to freedom of speech and expression, lays down that such restrictions can be imposed only on specific grounds and by a duly enacted law.

In accordance with the provisions of the Constitution and the ruling of the Supreme Court from time to time, it is now established that the right to life includes the right to live with human dignity and that all that goes along with it, free from exploitation. Neither the Central government nor a State government can take any action depriving a person of the enjoyment of this basic freedom.

The right to freedom of association, meaning the right or ability of people to come together and collectively express, promote, pursue, and defend their collective or shared ideas, is recognised as a human right, a political rights and a civil liberty.

Clearly, the form which an association of persons or institutions takes depends to a large extent on the purpose for which it is set up. Such purposes can include mutual economic benefit, cultural or social activities, religious or political pursuits, commercial activities and so forth.

Clearly, the policy and legal environment obtaining, at the national or State level, should be such as to promote, encourage and support such associations. Laws containing provisions to regulate which activities sound only aim to ensure that the rights of individual members are protected, and that the common purpose for which the bodies are formed is served fully and properly.

When the association takes the shape of an assembly or a group of persons with a common objective, there are laws which come into force to regulate such activities. If such an assembly, for instance, exceeds the number of the ceiling prescribed by a restriction in force such as the one imposed by the provisions of Section 144 of the Criminal Procedure Code, the authorities concerned have a right to proceed against it.

By and large, the spirit of the enabling provisions, in the Constitution and the laws, is such as to facilitate the formation of associations and assemblies and to promote their common objectives, so long, of course, as they remain within the four corners of law. Therefore, any unreasonable restrictions that take away this freedom need to be viewed with disapproval, if not suspicion, in regard to the motives behind them.

The freedom of association of like-minded individuals or institutions can manifest itself in the formation of several types of bodies. These can include loosely put together groups such as Self-Help Groups, farmers clubs etc., whose structure is not the creation of any statute or law.

Such bodies, experience has shown, are extremely successful when their origin is spontaneous (as, for instance, in the case of the anti-arrack movement by women's groups in Andhra Pradesh State).

But, when, inspired by such initial success, governments attempt large scale replication artificially, failure inevitably results, largely on account of a lack of sync between local cultures and the rigid straight jacketed model imposed from above.

Then there are bodies constituted under statutes such as the societies registration act of India. The regime regulating the functioning of such bodies, however, is rather weak with the registrar of societies having little authority to control their functioning.

His role, in fact, ends with receiving returns relating to such events as amendments to the bylaws, audit, disqualification of members, elections etc. The structure of the legislation is also such as not to enable such societies to access or leverage institutional finance.

Another category of bodies comprises those constituted by statutes of Parliament or the State legislatures. Examples are organisations like the Food Corporation of India and the State Bank of India at the national level, and Road Transport Corporations at the State-level.

This category, by far represents the most viable model, as it is a dynamic and robust combination of the features of a commercial company (enjoying, as it does, financial autonomy and administrative freedom together with managerial flexibility), and also freedom from excessive bureaucratic control and political interference.

Other forms of such bodies include those set up under various laws of either Parliament or the State legislatures such as, for instance, universities. Societies set up under the National Multistate Cooperative Societies Act or the Cooperative Societies Acts of various States constitute a fairly unique group of bodies, largely serving the purpose of facilitating mutual economic benefit of the members.

These have been the subject of study by various committees and commissions over the last several decades as they are easily susceptible to manipulation by vested interests, politicians and bureaucrats. The relatively recent concept of cooperative companies, however, promises to prove more member – friendly, economically viable and democratic in functioning.

Experience shows, however, that some of these function well anywhere in the country, such as those formed for the purpose of housing or consumer activities. Other forms, particularly those meant for rural credit, have been successful only in some parts of the country where agriculture is a relatively prosperous activity and consciousness among the membership is high.

The most common and easily the most popular form of these bodies is the company private or public, and for profit or not for – profit as the case maybe. This form is the most well-known all over the world, companies are known to be subject to phenomena induced by market forces such as mergers, acquisitions and hostile takeovers etc. It however remains the most successful and appropriate model particularly for commercial activities.

To be concluded on next Thursday

(The writer is former Chief Secretary, Government of Andhra Pradesh)

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