on international meetings undemocratic
-- 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 dictum, which has made me no wiser. Any arbitrary answer
would be presumptive. The powers of the Court are so immense; 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 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 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
former Chief Justice of India, Mr. J.S. Verma, heads the National Human
Rights Commission. 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
However, I do see a glimmer of hope after having talked to the Attorney
General, Mr. Soli Sorabji. 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 deemed 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, desire 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 dictate when
any one dared to differ. He said in his final report: "If the officials
on the one side and the politicians on the other do no limit their areas
of operation their accepted and acknowledged fields, this nation cannot
be keep safe for working a democratic system of government". The
memorandum has crossed those limits. Shah also said: 'If the nation is
no 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 rational 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