Taking Dworkin seriously in the Corona era

Ms. Anchal Bhatheja


Abstract

In the wake of the coronavirus outbreak, many journalists have been hounded and hauled up for reporting facts and opinions which did not appeal to the government. In the given piece, I argue that the clamp down upon the media personnel, who are critical of the government, is not something Dworkin would ever accept. It is immensely important for a constitutional democracy like ours to respect the freedoms and liberties of the individuals, even if the situations are extra-ordinary and their opinions are unpopular.

In the present unproclaimed emergency, when the courts are only hearing “urgent” matters, when the parliament has been adjourned sine die and the executive wing has more power and discretion than ever, it can be surmised that the pandemic has amplified the authoritarian tendencies of the government and has deepened  the  crisis of democracy in the countries where  civil liberties were already on a bumpy road.

The most brutal blow of this amplifying authoritarianism has struck the core of the right to freedom of speech and expression by the means of what Siddharth Vardarajan calls, “criminalization of media”.

Many journalists and editors like Vardarajan himself, Prashant Kannaujia, Pawan Jaiswal, Vijay Vineet and many others are facing legal implications due to their “unpatriotic coverage”; their criticism of the government for its callousness in handling the pandemic and the lockdown. Some others like Vidya Krishnan and Rashmi Puranik are also being subjected to a hate campaign on the web and there have even been calls for them to be gang-raped and murdered. These consequences are befalling them because they were critical of the government and its policies pertaining to the pandemic.

In this context, there is a need to flip through a few pages of Dworkin’s book  “Taking Rights Seriously”  in order to understand how this deepening danger to our democracy is worth being taken seriously. Dworkin mentions that there are certain rights that an individual holds in a strong sense. These rights held in the strong sense are essentially the manifestations of what these individuals conscientiously feel are the right things to do.

He exhorts the readers to honestly ask themselves a question and give an honest answer as to what are these “right things” in their opinion. However, he does not claim that everyone’s answer would be identical and neither does he claim that there is one right answer. All he says is that every individual holds certain opinions due to their socialization, religious background, community identity and political inclination. Based on their diverse backgrounds, individuals form a conception of what is right and wrong. Dworkin believes that an individual can very well do what they think is the right thing to do, till the time it is reasonable.

He further adds that the state should also not curtail the freedom of any individual to do what they conscientiously feel is right, unless it is unreasonable or there is some equally important individual competing interest at stake. He contends that a right held in the strong sense cannot be curtailed just because there is a general inconvenience being caused. For this purpose, Dworkin takes the example of an army conscription wherein he says that if the law of a country mandates all citizens to compulsorily serve in the army for a stipulated time and if an individual conscientiously feels that committing violence is wrong, then they cannot be asked to go against the calling of their conscience and still serve the army by fighting battles. He reasons this out by saying that an individual’s refusal to join army due to their personal beliefs would not cause specific damage and would only hurt general societal interest. But this general inconvenience is not a ground strong enough to curtail someone’s rights which are held in the strong sense.

To explain it further with an illustration, if A conscientiously feels that it is okay to sacrifice B for religious purposes, then such a belief is unreasonable. Here, A cannot be allowed to do what he feels is right because B has a stronger competing interest, i.e. his right to life, which would be jeopardized, if A gets to impose his conscience.

Dworkin clearly lays out the conditions in which a right held in strong sense can be compromised with. He contends that the state can curtail this right only when the damage being caused due to the exercise of this right is specific and not speculative. This right can be curtailed when it causes a marginal harm and hurts another individual’s rights and interests or, when the cost of protecting the right is much higher than the benefit that is accruing from the exercise of this right.

If one takes Dworkin seriously, they are bound to reach one logical conclusion which is that that the government’s action of reprimanding or intimidating the journalists who are criticizing the government’s actions amidst the national health emergency, is completely unreasonable and uncalled for. These reporters and editors hold certain opinions which are based partly on facts and findings, and partly on their political inclinations. On the basis of this, if they feel that something is the right thing to be said, written or published, it is not reasonable for the state, to stop them from doing so. This is because here, the tussle is between a journalist’s strongly held right and a general convenience of the people who are at the helm or their supporters. In Dworkin’s conception, general inconvenience cannot trump strongly held rights. The damage being caused is not specific and is speculative.

In fact, in certain cases, the journalists have been slapped with legal notices and summons for reporting the ground realities and truths which did not please the government or its supporters. Thus, this reporting might as well not cause any damage to the society and rather in certain cases, the society might be better off due to such reporting.

So, in such a scenario the state ought to respect civil liberties and the liberty to speak out even if the opinion being expressed is unpopular. For that matter, Dworkin also mentions that rights are essentially trumps which have the force to trump popular opinions and majoritarianism. The logic behind the same is that there is no need to enforce a right to say something that is already welcomed by the majority with open arms and is not met with abomination or objections. The need to enforce and protect the right to speak comes up only when an individual says something unpopular.

Article 19 1 (a) of the India Constitution which guarantees the fundamental right of free speech will completely lose its legal teeth and efficacy if it were to only permit the exercise of the right to speak out whatever pleases the majority. The jurisprudence around right to dissent and differ would lose its sanctity if the State uses far-fetched criminal allegations like hate speech and sedition whenever someone involved in the enterprise of imparting news to the public reports something that points out the lapses in their governance.

The State should not use the coronavirus outbreak as an excuse to clamp down upon the exercise of strongly held rights, under the garb of protecting public interest. This health emergency should rather be used to polish and revive our democracy. There is a need to ensure that the constitutionally guaranteed rights do not just remain enshrined in the Constitution as a few dead letters. The State needs to strive towards empowering these rights to an extent that they are able to trump the vast expanse and heavy weight of society and even the state, when it becomes authoritarian.

This is how Dworkin can be taken seriously in a committed constitutional democracy like ours.

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