SOVEREIGNTY OF CHOICE

By: Somasekhar Sundaresan

Freedom to choose finds resonance across cultures and religions, yet individuals are conditioned to feel proud about how they have given up choices that are otherwise available to them

The My Choice video with a voice-over from Deepika Padukone has deeply disturbed many. The crisp and powerful narrative of an individual’s sovereignty has left in its wake many a disturbed husband, father, brother, and of course, mother. 

Mothers have written about how they were filled with hope when their young daughters found the video selfish. A “male response” video has cropped up with a “moral of the story” caption about how men would never promote adultery. Claimants to being “feminists” have endorsed the video while women who disclaim feminism have been quick to disapprove of it. Others have hedged by saying feminism means something other than what the video contains. All these reactions point to one clear fact: the video could not have done better in provoking thought on very important concepts of jurisprudence. 

The allegation that the video promotes illegality is hollow. The words in the script that are accused of promoting “adultery” are: “To marry or not to marry, to have sex before marriage, to have sex outside of marriage, to not have sex: My Choice.” Surely, when an individual marries or chooses not to, she makes a choice. Sex before marriage is a matter of choice. Sex outside marriage may have consequences but it is an outcome of choice. Refraining from sex outside marriage is surely an outcome of choice too. Refusal to have sex inside marriage is likewise a matter of choice. Each of these choices could have consequences, but, nevertheless, they are choices one is entitled to make.

Therefore, the logical message from the video is obviously one of a woman’s sovereignty over herself — the right to make choices and deal with the consequences of choices made. “Sovereignty” essentially means the possession of absolute and supreme authority within a certain space. The government of a sovereign nation has a monopoly over the use of force within that nation. The right to use force over oneself has to reside only in oneself — a fact mostly forgotten in associations and societies comprising individuals. Indeed, one sovereign may sign away elements of absolute sovereignty in a contract with another sovereign, but the terms of signing away is clearly a matter of choice.

The term “choice” can be controversial in law and policy across societies. If legislation against marital rape is India’s bugbear, in the United States, it is the state policy towards abortion. That is a society where the very word “abortion” evokes such sharp reactions that support for the right to abort has to be couched as “pro-choice” to make it palatable. Just last week, on highly-contested facts that point to possibilities ranging from induced miscarriage to killing a prematurely born foetus, Purvi Patel, a Gujarati-American was convicted in Indiana with a potential jail term of 20 years. 

“Choice” simply means the right to choose from among options. It is known to mankind across cultures and religions as having spiritual sanction — for example, the Bible speaks of god ordaining consequences for choices but never compelling a choice. Hindu thought even presents a range of gods to choose from to suit one’s preferences and attitudes. Yet, societies have conditioned individuals to feel proud about how they have given up choices otherwise available to them, rather than make them conscious that inherent in giving up choice is itself a matter of choice.

In a nation that has developed the image of being the rape capital of the world, it is not harsh punishments in the law that would bring down the incidence of violating women’s rights. It is developing an appreciation of a woman’s sovereignty that would help mould masculine entitlement. The sense of entitlement over a woman is not problematic just from the perspective of masculine entitlement. Parents seek to force their choice on daughters. Brothers seek to force their choice on sisters. Even kids seek to force their choice on mothers. Little wonder then that a script that says “You are my choice. I am not your privilege… I am the Universe, infinite in every direction. This is my choice” can be so unsettling.

Tweets: @SomasekharS

(This article was published in the Mumbai Mirror, Pune Mirror, Ahmedabad Mirror and Bangalore Mirror on April 3, 2015)

PERCEPTION, REALITY AND CLASS

By Somasekhar Sundaresan

Modi’s recent dig at wealthy activists reveals the social stereotypes associated with wealth. Does the economic status of an individual really determine his/her treatment in our country?

The prime minister’s remarks about judges being fearful of the reaction of “five-star activists” while rendering justice has sparked a controversy. Speaking at a conference attended by Supreme Court judges, chief justices of high courts and chief ministers of various states, the PM is said to have exhorted the judiciary to stay “as fearless today as it used to be ten years ago”. “It is not difficult to dispense justice as per Constitution and law. But while doing so, judges must differentiate between perception and fact,” the PM is reported to have said.

Some have focused on the intrinsic element of economic capacity of a person approaching court being relevant for the PM – activists not leading a hand-to-mouth lifestyle somehow becoming less worthy of getting justice from courts. Others have said his reference to perception playing a role in judicial decision-making amounts to contempt of court. As always, there are multiple truths competing for space in the discussion.

As a popularly elected PM, the views on the economic status of a person seeking justice are not out of sync with the political reality of how the Indian society thinks. Ours is a society that pretends to comprise egalitarian individuals despite widespread economic and social disparity being an integral society reality. Deeply embedded in our psyche is the belief that most of the wealthy are undeserving of wealth and all the privileges that come with it. Yet, we celebrate our wealthy and crave to be wealthy even while externally sniggering and ridiculing the enjoyment of wealth.

It should not shock and surprise then any political leader seeking to communicate directly with this society (more so if it were directly over the heads of those in the room) should want to bring in an element of economic class and take a potshot at the wealth of those seeking justice. It can indeed be disappointing for the economically wealthy that a right-of-centre politician too feels the need to use a reference to class in this manner. But they can take solace from the Tamil adage about offering one coconut for the devil when one offers a hundred coconuts in the temple of God. The right wing would in fact relish snide remarks about “champagne socialists”.

Do the remarks constitute contempt of court? Coming from the head of the executive in the Republic of India, one can take it as a symptom of the inter-institutional tension designed in the Constitution. Former Prime Ministers too have expressed views against judicial overreach and judicial activism while judges have reacted with equal zeal to defend the judiciary – more recent example the exchange of views in a public forum between Union Minister Piyush Goyal and Supreme Court judge Justice T S Thakur.

The term “collective conscience” has in fact been officially and judicially recognised by the judiciary in handing down decisions in cases where society has pre-determined the need for conviction and the measure of punishment. Trials relating to Afzal Guru and Ajmal Kasab are prime examples. More recently, we learnt that to manipulate public sentiment, the prosecutor lied about Kasab demanding biryani when in jail (the prosecutor not just confessed but bragged about it). The fake biryani demand was aimed at getting public perception against the need for an expensive trial.

Standing up against this trend in our society is a handful of senior (and to society’s deep regret, wealthy) lawyers. An activist who can afford to spend time and resources of abolition of capital punishment or to care for the wretched lives of Guru and Kasab would mostly have a full stomach and the economic capacity to afford a fivestar lifestyle. However, equally, a brutal majority of “five-star” patrons strongly believed that they should have been sentenced to death without trial.

Therefore, does perception play a role in judicial determination of proceedings? Sure. Is this reality preyed upon? Sure, almost every retired judge has his share of stories about receiving anonymous letters. Is that bad for society? Sure. Does that last answer change depending on the economic circumstances of those seeking to influence perception? Not at all.

Tweets: @SomasekharS

(This article was published in the Mumbai Mirror, Pune Mirror, Ahmedabad Mirror and Bangalore Mirror on April 10, 2015)

NET NEUTRALITY – NOT BLACK AND WHITE

The debate on unhampered access to the internet is a complex one, and should be approached only after we’ve understood aspects of the country’s regulatory climate and internet services market 

Net Neutrality” is the new buzzword. Particularly in the world’s most populous democracy that has a penchant for jargon. That too, right after the United States’ Federal Communications Commission has published the “Open internet Order” to adopt net neutrality as formal policy in that country, and the Telecom Regulatory Authority of India seeking public comments on a consultative paper.

What exactly is “net neutrality”? It has come to mean different things to different people — much like the story of the blind men and the elephant. What the US FCC has adopted as its version of net neutrality would be instructive to understand the concept. Essentially, net neutrality entails the law governing internet access containing prohibitions on blocking, throttling and paid prioritisation in terms of ease of access to the use of the internet. It also entails transparent terms of access to the internet, mobile phones and fixed landlines. 

Therefore, a broadband service provider would need to be prohibited from blocking or slowing down the access to specific applications used on the internet. It would mean a prohibition on “hoarding” broadband speed and creating “fast lanes” requiring specific sources of content to pay more for internet access by customers. What would this translate into in simpler English? Essentially, it means a ban on unreasonable discrimination in accessing the internet. 

For example, a broadband service provider cannot block access to content that is not legally banned. Let’s say India’s Daughter had not been banned — your internet broadband service provider would not be entitled to make a value judgement and impose a ban of his own. Likewise, the broadband provider cannot discriminate against internet traffic on the basis of who generated it. For example, a competitor to Star TV providing internet access cannot prevent access to Star Sports’ internet coverage of the Cricket World Cup even while Twitter updates of the same tournament would be available. Likewise, a broadband provider cannot charge Star Sports an extra fee to speed up streaming of coverage of the Cricket World Cup or to slow down access to Twitter updates on the matches.

While the intended principle is laudable, one should also guard against the medicine becoming more painful than the ailment. The US FCC had a deeply divided resolution when it adopted its net neutrality order. Three out of five commissioners voted for it while the remaining two voted against. One of them, Indian American Ajit Pai is a publicly vocal advocate of market forces being good enough to guard against unreasonable discrimination.
The internet is the public infrastructure on which many a new business enterprise has been built. It has been an egalitarian leveller of the marketplace by demolishing entry barriers to competition. Imposing hurdles on speed of access to the internet by small start-ups would entrench the big boys and prevent disruptive competition. Yet, the business of providing internet access is itself a competitive market, although one would need a license to get into this business.

In India, the proposal of an internet access provider to charge for usage of a free communication platform that only needs Wi-Fi connection and circumvents the need for a mobile communication platform, has sparked off a raging controversy on whether this country is violating net neutrality. If this were offensive to customers of that service provider, they could always shift to another provider who does not impose such charges, retaining the same mobile number. If multiple service providers get into a cartel to impose such charges, the competition regulator could step in and impose crippling penalties on members of the cartel. 

Likewise, net neutrality does not mean there can be no discrimination at all among customers — a customer who is willing to pay for a better spectrum or a higher broadband speed gets that even today. So long as any customer is allowed to sign up to the package, there is no case for a ban. Killing discrimination absolutely would mean killing competition among service providers. Neutrality can only mean that no discrimination should be unreasonable and arbitrary. It necessarily entails a subjective regulatory judgement and can present morality choices like the one between smoking up in a prayer hall, and praying even when smoking up. Complex.

Tweets: @SomasekharS

(This article was published in the Mumbai Mirror, Pune Mirror, Ahmedabad Mirror and Bangalore Mirror on April 16, 2015)