A draconian measure

By Kuldip Nayar

IT IS unfortunate that the Supreme Court has dismissed at the admission stage a writ petition which challenged the Home Ministry's memorandum on the invitees from abroad, particularly China, Pakistan, Bangladesh and Sri Lanka, to a conference or seminar in India. The circular requires prior permission of both Home and Foreign Affairs Ministries if the topic at the meeting is ``political, semi-political, communal or of a religious nature or is related to human rights''.

I cannot make any detailed criticism of the Supreme Court's dismissal because the learned judges have not considered the matter important enough to merit a written judgment. The observations made by the judges during the hearing are my only guide. One observation is that under the cover of international seminars, ``large amounts of illegal money'' have flowed into the country. I fail to comprehend the connection. Will ``large amounts of illegal money'' stop coming if there are no international conferences? The type of money the judges are referring to comes to India anyway through many channels.

On the other hand, the international conferences and seminars have to follow several strict rules. There is so much supervision that every penny received from abroad has to be accounted for. The recipients of money have to comply with foreign exchange instructions. Even then I do not rule out certain hanky-panky things happening. It is possible that some money goes astray. Should that be the rationale for such a draconian measure?

The real point at issue is that of freedoms: freedom to express, freedom to know, freedom to assemble and freedom to act as a democratic nation does. True, all the rights guaranteed under Article 19 are subject to the security of the country. The learned judges have said that ``large amounts of illegal money'' from abroad endangers the security. It is an obiter ditcum which has made me no wiser. Any arbitrary answer would be presumptive. The powers of the Court are so immense that it is almost impossible for the court to `exceed' them. But this fact does not absolve the court of the duty to use its powers with the greatest care and restraint.

With all humility I want to point out that the Home Ministry's circular is so pervasive and so vague that it violates the norms of a free society. Parliamentary democracy will become effective only when it is a guarantor of individual freedom. It cannot degenerate into something restrictive, something authoritarian. Suppose I want to hold a conference in Delhi to harness support against terrorism in South Asia. There are no guidelines to tell me how to go about it except seeking permission of Home and Foreign Affairs Ministries. There are no guidelines why I could invite so and so and not so and so. I shackle myself before I prepare the list of participants. For the Supreme Court to give a clarion call to fight against the ``illegal operations of the underworld'' while rejecting the writ is not in character. We are talking about eminent educationists, lawyers, doctors and academicians who come from different parts of the world. No doubt, the country is going through a phase of violence and terrorism. But the consideration of national security cannot allow any step which may impair an individual's rights or tell upon the openness of our society.

Incidentally, the writ was filed on the basis of my article in this paper on the Home Ministry's memorandum. I also wrote to the National Human Rights Commission to complain that the Home Ministry's circular ``attempts to muzzle the points which the Government is afraid to face''. My other plea was that the activists who lent their voice to unpopular causes would be stopped in their track.

The commission said in its reply that it had taken up the matter with the Government. I do not know what will be the fate of the commission's intervention when the Supreme Court has dismissed the petition even without pronouncing any judgment - as if it was a cursory writ. I shall, however, await the end of it because the National Human Rights Commission is headed by former Chief Justice of India, Mr. J. S. Verma. The PUCL petition on the memorandum has been disposed off by the present Chief Justice of India, Mr. A. S. Anand. It is an interesting situation.

However, I do see a glimmer of hope after having talked to the Attorney-General, Mr. Soli Sorabjee. He has been a human rights activist and before accepting the present position he headed the Commonwealth Human Rights Initiative. He feels let down by the memorandum. He was embarrassed by the remarks some top jurists made when he was abroad. I have myself talked to the Home Secretary who seemed to be aware of the wide disappointment which the memorandum has raised. I got the impression that the Ministry was in the process of amending it. I do not know how the Supreme Court's decision would affect it.

Come to think of it, how superfluous the memorandum is. There are many ways, through the internet or voice devices, to reach one another across the borders. The international conferences convened in the country will at least be more organised and to the point than the Internet meets which may go off at a tangent. Restrictions only make human beings rebellious and irresponsible. The history of harsh steps on secrecy is replete with examples where even the law-abiding people have defied them to keep the torch of liberty aloft.

The memorandum has upset large sections of civil society and goes against Mahatma Gandhi's advice to keep doors and windows open to let the air come from all directions. Rabindranath Tagore once said: ``Nationalism is a great menace. It is this particular thing which for years has been at the bottom of India's troubles. And inasmuch as we have been ruled and dominated by a nation that is strictly political in its attitude, we have tried to develop within ourselves, despite our inheritance from the past, a belief in our eventual political destiny''. Unlike the militant nationalists, Tagore placed social reforms before political independence.

Justice J. C. Shah, who went into the excesses during the Emergency (1975-77), found a similar tendency on the part of the Government to dictate when anyone dared to differ. He said in this final report: ``If the officials on the one side and the politicians on the other do not limit their areas of operation to their accepted and acknowledged fields, this nation cannot be kept safe for working a democratic system of government''. The memorandum has crossed those limits.

Shah also said: ``If the nation is to preserve the fundamental values of a democratic society, every person whether a public functionary or private citizen must display a degree of vigilance and willingness to sacrifice. Without the awareness of what is right and a desire to act according to what is right, there may be no realisation of what is wrong''.

During the Emergency, for many a public functionary the dividing line between right and wrong, moral and immoral, ceased to exist. The Home Ministry has given officials a legal rationale to go berserk. The Supreme Court, which failed the country during the Emergency, should have put the Ministry on the mat.

I had pinned my hopes on the Supreme Court. I am disappointed. In fact, I feel let down. Today the Court is preoccupied with difficult problems. But it must stretch the Indian Constitution to protect human rights - the rights of the individual citizen - against various manifestations of official and private power. I feel the law and Government impose more burden on an individual's rights than he or she can safely bear.

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