State Should Stay Away If Someone’s Freedom Doesn’t Hurt Somebody’s Nose

Several recent instances of imposing and lifting of bans in India and France have raised fundamental – and knotty – questions about the state (represented by legislature, executive and judiciary) versus individual/religious/cultural freedom in a modern, liberal polity. These are questions that even those who do not believe in a minimal state (where the government confines itself to protecting borders, maintaining law and order and justice and providing public goods) will find it difficult to come up with glib answers to.

In India, court orders lifting ban on women entering the sanctum sanctorum of the Haji Ali mosque and earlier in the case of the Shani Shingnapur temple in Shirdi have been widely welcomed; but orders setting the height of the dahi handi human pyramids have not – they have even been defied. In France, the ban on burkinis did not get the massive support that an earlier ban on burqas did.

There is an understandable alarm over the proposed law regulating surrogacy as well as prohibition in Bihar and the over-enthusiastic implementation of a long-standing ban on beef in many states. But while there is much debate on these, there is a largely resigned acceptance of smoking bans, fast food bans, pornography bans, sexual orientation bans, cuss words bans, book bans etc etc.

It is not facile to link all these. All of them represent a growing tendency of the state, over the years, to encroach into areas it has no business to be in. In fact, in the case of issues like surrogacy, prohibition and sexual orientation, the state is entering into an amorphous and very tricky issue of morality, which is extremely dangerous.

And, yet, there is no denying that the exercise of personal/religious/cultural freedoms does some times affect public safety and public order. They can also be in conflict with the founding principles of a modern liberal state. Can the state, then, afford to adopt a hands-off approach? If not, where does individual or group freedom end and state interference begin?

The thumb rule to decide this has to be simply this: your freedom ends where someone else’s nose begins.

So, restrictions on fireworks during religious festivals, loudspeakers, processions and congregations are perfectly justifiable. The tragedy in Puttingal Devi temple in Kollam district of Kerala in April – more than 100 people died when a fireworks show went awry – was the result of restrictions being blithely ignored and not enforced. An annual one-day event that disrupts normal life can be tolerated, but not weekly occurrences (when congregations at Friday prayers in mosques spill over on to main thoroughfares) or even long-drawn out annual events (the kanwaria yatras of Shiva devotees in north India) since they disrupt normal civic life. Religious sentiments cannot override public safety and public convenience.

However, the Supreme Court setting a minimum height of the human pyramids formed for the dahi handi ritual is less easy to support. True, the death of one person and two children being critically injured as the ban was defied is tragic. But let’s not forget that the people participating, or parents allowing their children to participate, in this perilous ritual do so knowing they are risking life and limb. So long as the risk is only for the participants and so long as the participants are aware of this risk, the state should maintain a distance, limiting itself to making arrangements for crowd control and traffic diversions. But those who are injured or the relatives of those who die as a result should not claim compensation from the government or cry foul if insurance companies don’t pay up.

Take also the exemption given to Sikh women two-wheeler drivers and pillion-riders in Delhi from wearing helmets on religious grounds. If they knowingly risk their lives, in the mistaken belief that their skulls are somehow less prone to being split when it hits the road, it is their problem. (But Sikhs then should not object if insurance companies hike up the premium or refuse to pay for injuries/deaths resulting from not wearing helmets.) If some other group comes up with some bizarre religious excuse for not wearing seatbelts, let that also be conceded. But no group should be allowed to claim religious freedom to drive on the wrong side of the road, jump traffic lights or drive with unacceptable levels of alcohol in their blood stream.

Public safety and security make the French ban on the burqa perfectly valid. But the burkini is about private choice and so the ban on it is not valid. The burqa can be a security risk – it hides the face and its voluminous folds can be used to cover weapons/stolen goods; the burkini is not – a criminal or terrorist cannot make a getaway wearing a burkini. Opponents of the burqa ban arguing that it denies women the choice to hide their face miss the point; people should not have a choice about hiding their faces in the public space. A burqa ban upholds secularism, security and public order; a burkini ban is victimisation.

Should the state step in to force places of worship to allow entry to barred groups like women or Dalits? Court orders in the Haji Ali and Shani Shingnapur cases are hailed as a fillip for women’s rights, but this is not something the state should have been involved in. These are matters that should be resolved through community pressure. Being denied entry into a place of worship is not a human rights violation on the lines of being denied jobs, access to secular institutions of the state and property or being subject to violence to warrant state intervention. Far better for those denied entry into temples or mosques to reject them outright.

But such discriminated groups should certainly force the state to act – and the state must act – when basic human rights are denied. As it did when Mary Roy challenged the inheritance laws of the Syrian Christian community. As it did in the Shah Bano judgement. As it did in ensuring inheritance rights for Hindu women. As it should when the crescendo of Muslim women’s voices speaking against triple talaq reaches a critical mass. As it should when Dalits are denied access to village wells and other community facilities.

The citing of culture or morality to justify state intervention in the personal space is even more problematic. In the case of religion, recourse can always be taken to a religious book in the case of Abrahamic religions or mythology and myriad texts in the case of Hinduism to counter a regressive argument. But culture is hard to define and can be arbitrarily used – both to intervene and to turn a blind eye.

Culture can be used as an excuse to act against young people making their own choices (whom to marry, whom to love, how to dress and dance) but as a shield to not act against social institutions (families, khap panchayats) imposing their will on others or even social practices anachronistic with modern values. Take the absolutely egregious example of the state using the culture argument to ban homosexuality but refusing to pass a law against marital rape; though both entail the state entering the bedroom. Both positions are unacceptable.

And as the proposed law on surrogacy shows, even a woman’s decision about her body or a couple’s decision about how they want to have a baby has to take second place to culture. The only role any government regulation should have on surrogacy is ensuring that the consent between the two parties is informed, voluntary and not extremely one-sided and, later, in the enforcement of the contract in case of any violation. That is all. It is not for any government to decide who should opt for surrogacy and who should not.

Nor should the state be telling people what to eat and drink and what to read and see. Priya Ranjan Dasmunshi, the information and broadcasting minister in the first United Progressive Alliance government, ordered two underwear ads to be taken off television because they apparently offended sensibilities. That government’s health minister Anbumani Ramadoss got the University Grants Commission to write to universities asking them to drop fast food and carbonated drinks from their canteen menus. And now Nitish Kumar is trying hard to make a completely ill-conceived prohibition policy to work through draconian measures. 

Should the state watch silently as junk food and smoking cause public health problems? Or when drinking becomes a social problem with men frittering away earnings on alcohol and beating up their wives? Banning, however, is not the answer; bans don’t work, in any case. The fight against junk food and smoking has to be through awareness building, or perhaps a sin tax. The fight against alcoholism, apart from sin tax, has to be through empowering women so that they are not dependent on – and can stand up to – drunk and abusive husbands.

State encroachment into the private space needs to be halted in its tracks. The rationale for the state interference in individual and group freedoms can be just one – checking negative externalities. It must act firmly when this happens; it must stay away at all other times.