Even if you take J.S. Mill out of the equation, we see that the way in which the idea of freedom and equality are understood in independent India follow the same exclusionary logic that Mill had deployed.
Why would anybody possibly be against liberty? It is, after all, the key ingredient that makes us modern and progressive. Liberty is at the heart of any democratic Constitution in the common law world, including ours (in which we call it freedom). So, I’m not arguing against the ideas of liberty or freedom, but wish to advance a counter position to the common-sense value of these being a universal good. They aren’t. In fact, along with equality, they form a triad that carries the potential to mask and justify exclusion and violence.
A most basic understanding of the idea of liberty is that the individual’s right to do what they want to do (even something to their own peril) cannot be infringed upon by the state. The state can justify its intervention to stop someone from doing something only if that action carries the possibility of harming others. This concept of liberty comes from the work of the 19th century British thinker J.S. Mill. In 1958, Mill wrote his famous tract On Liberty, which introduced a rival to the prevailing idea of state sovereignty (another European politico-legal invention that can be traced back to the 1648 Peace of Westphalia that ended the 30 years’ war). For Mill it is not just the political entity called the state but also the individual who has sovereignty. Such sovereignty over the individual’s “mind and body”, for Mill, was “absolute”. Mill thus introduced into political theory and modern law what is referred to as the “harm principle” that imposed limits on the state’s authority over the lives and conduct of its citizens.
The British legal scholar H.L.A. Hart used the harm principle for defending the recommendations of the 1957 Wolfenden Committee Report that decriminalized homosexuality and sex work in the UK. And if one reads the texts of the fundamental rights provisions in the Constitution of India, these also follow the logic of the harm principle, in that they uphold the sovereignty of the individual against the state. The exceptions to Article 19 stand justified because they concern conduct that has potential to harm others. If the right to life under Article 21 carried an internal anomaly—“except through procedure established by law”—that allowed it to be suspended during the Emergency, that malaise was pointed out by the powerful lone dissent of Justice H.R. Khanna in the landmark ADM Jabalpur case. Similarly, if one reads some of the recent progressive decisions of the Supreme Court of India—particularly Puttaswamy and Navtej Johar—it will be apparent that judicial reasoning recognising the right to privacy and decriminalising adult, consensual, and private sex, respectively, rely heavily on the harm principle.
So, what is my worry with Mill’s idea of liberty if it has enabled such important developments? My worry stems from what immediately follows Mill’s recognition of absolute individual sovereignty in On Liberty. In the very next paragraph Mill creates an exception the universality of liberty. For Mill, individuals who are a part of “backward states of society in which the race itself may be considered as in its nonage” can be denied this access. Writing just a year after the Sepoy Mutiny of 1857, Mill seems to be punishing the subordinated non-Europeans of a lesser race for their insurrectionary temerity. Those races in their nonage—meaning both infantile (without the capacity of reason) and without history (because for him history began with the Enlightenment and Europeans arrived there first)—are referred to as “barbarians” by Mill and it will be perfectly alright if they were ruled through “despotism”. Mill, however, is not suggesting a perpetual denial. Once the barbarians have been “improved”—in other words, civilized—through the justified means of a despotic “mode of government” they will be allowed to access the fruits of liberty. Liberty is thus made conditional upon the ability of the non-European to learn and mimic European ways. And even if the non-Europeans were to become European in conduct, liberty could still be denied because they will always be of a lesser race. This permanent state of deferral is what historian Dipesh Chakrabarty has called the “waiting room of history”—to which the non-European aspiring for access to the fruits of liberty are relegated.
We now confront a paradox. The very idea that is at the heart of the emancipatory promise of the Constitution of India—freedom and equality—owe their intellectual origins to the thoughts of a white racist man. Of course, one can argue that the value of liberty can be appreciated independent of Mill’s racism—and that is what the Indian Constitution does. Yet, even if you take Mill out of the equation, we see that the way in which the idea of freedom and equality are understood in independent India follow the same exclusionary logic that Mill had deployed. This is the logic of a mode of governance that we call liberalism—one in which the actions of the state are limited by law to protect the rights of its citizens and the market. As the feminist legal scholar Ratna Kapur has noted: “Exclusion…is inherent to liberalism, while the terms of inclusion, demand the erasure of difference.” Let me offer two illustrations.
Article 14 of the Constitution of India advances this very logic. To claim that you should be treated equally with regard to someone else, Article 14 requires that you and this other person should qualify to be a part of an intelligibly classifiable group. Meaning, you need to be similarly placed to make a claim for the right to equality to apply to those part of that classifiable group. What flows from this is that if you cannot qualify to be a part of such a classifiable group, there is no obligation on the part of the state to treat you equally to those in another group. So, if a woman is not allowed to work at night at a factory by a law, and she says, invoking Article 14 that she is not being treated equally to other men who work there at night, the courts can say that men and women do not form part of an intelligibly classifiable group and thus this woman cannot be protected by the right to equality. Article 15(3) can come to aid this denial further in the name of protecting women being considered as a homogenous vulnerable group. In this scenario, race hierarchy gets replaced by gender hierarchy, and women’s access to the freedom to work is made contingent upon their condition of vulnerability leading to them being relegated to another kind of waiting room in independent India—the patriarchal family. The only way women’s inclusion can happen in the nocturnal workforce is when women let go of their differences based on their gender—for example, enabling conditions like access to childcare, protection from sexual violence, maternity leave, etc. If they cannot give these up, then exclusion can be justified by law.
Now consider Article 22, which guarantees the rights of an arrested person and can be called the civil rights provision of the Constitution. This right is supplemented by several judicial decisions that have expanded the scope of Article 21 in this regard, especially the D.K. Basu judgement. But when you move to Clause 3 of Article 22, we see that the Constitution makes an exception for two categories of people whose rights on being arrested can be suspended: “enemy aliens” and those arrested under preventive detention laws. The logic of liberalism thus repeats itself. Access to the benefits of a civil rights guarantee is made conditional upon the category of person you are. Race, in this case, is replaced by an imaginary image of the “terrorist” Other in the enemy alien or the ideological labelling of dissenters as “anti-national” arrested under a preventive detention law like the current version of the Unlawful Activities Prevention Act, whose provisions have led to the arrests of activists, academics, and students who have spoken out against the BJP government’s perverse disregard for the Constitution of India by the introduction of the deeply exclusionary Citizenship Amendment Act.
Those labelled anti-nationals and arrested by the current dispensation—Anand Teltumbde, Sudha Bharadwaj, Rona Wilson, Gautam Navlakha, Arun Ferreira, Vernon Gonsalves, Safoora Zargar, Natasha Narwal, Devangana Kalita, to name a few—are relegated to a more violent waiting room, which is the carceral confines of the prison. While in the case of liberalism lite an exit from this waiting room might still be possible once its inhabitants are trained to behave as per the terms of the state by letting go of their difference, when relegated to the prison as waiting room, the anti-national is not trained, but can in fact be tortured with Constitutional sanction. We must remember that India has not ratified the UN Convention Against Torture or enacted a national law against such a state practice. Moreover, the Supreme Court of India, despite a long history of judicial activism and progressive interpretations of Article 21, has never declared unconstitutional any preventive detention law including the draconian operation of the Armed Forces Special Powers Act in Kashmir and Manipur.
For the sake of our democracy’s health, we will do well to remain extra vigilant when it comes to the state speaking of liberty’s promises of progress by citing the Constitution. Because liberalism is medicine for the powerful and poison for the marginalized, it kills the anti-national and the migrant and it protects the rights of the rich. And yet, we cannot completely abandon it. That is the cruel paradox of all liberal democracies. We are condemned to live and die with it.
Prof (Dr) Oishik Sircar is Associate Professor, Jindal Global Law School. He did LLM from the Faculty of Law, University of Toronto and a PhD from Melbourne Law School, The University of Melbourne.