In India everything is topsy-turvy today. Even the rule of law and its enforcement varies from caste to caste, community to community, religion to religion, zone to zone, region to region and state to state. All the three crumbling pillars of the State ' the Legislature, the Executive and the Judiciary ' seem to be more concerned about the petty politics of law rather than the loftier shrine of the jurisprudence of law.
A great lawyer-statesman and philosopher of a former age ' I mean Francis Bacon ' said that truth came out of error much more rapidly than it came out of confusion. There is a wonderful truth in that saying. Next to being right in this world, the best of all things is to be clearly and definitely wrong because you will come out somewhere. If you go buzzing about between right and wrong, vibrating and fluctuating, you come out nowhere; but if you are absolutely and thoroughly and persistently wrong, you must some of these days, have the extreme good fortune of knocking your head against a FACT, and that sets you all straight again.
Truly to a clear eye the smallest fact is a window through which the infinite may be seen. Louis D Brandis, one of the father figures in the evolution of American law, observed : 'State the facts and let the characterizations suggest themselves'. He said this as a great judge of America. Thomas Jefferson, a founder-statesman of the American Republican State, spoke these words as a top politician of America : 'A patient pursuit of facts, and cautious combination and comparison of them, is the drudgery to which man is subjected by his Maker, if he wishes to attain sure knowledge'.
While all this is absolutely true for all time and place, yet it should be borne in mind that the main part of intellectual education is not the sterile and mechanical appreciation of facts but learning how to make facts live.
Those who won our independence under the inspiring leadership of Mahatma Gandhi by non-violent revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty ' general or individual. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussions the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not State-coerced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Indian constitution.
These thoughts came to my mind in the context of the blatantly uneven-handed nature of attitude displayed by Tamilnadu State administration towards the frayed and wounded feelings and sensibilities of the Hindus in majority following the desecration of Hindu temples in Salem, Villupuram, Erode, Chennai etc a few days ago. The State police named Poojya Swami Dayananda Saraswathi in the FIR only because he in his capacity as the coordinator of the Hindu Dharmacharyas Sabha had issued a statement formally protesting the installation of the statue of EVR in front of the Rajagopuram of Sreerangam temple. The known and patent public fact is that the Swamiji had made it abundantly clear that he had nothing against the installation of EVR statue in any other more suitable place in Srirangam. The state police had also named in the FIR an outraged Hindu Bhakta Kannan who had only sought judicial redress for removing the offending statue. This makes all the law abiding citizens of Tamilnadu wonder if the DMK government is sending a signal to Hindus that all democratic recourse to non-violent protests and defined processes of law and justice will be punished ruthlessly through the strong arm of the State criminal law. These legitimate public fears get duly confirmed when we take account of the fact that a Hindu activist called G S Jayashankar, general secretary of Hindu Makkal Katchi, has been detained under the National Security Act for having addressed the media at the Chennai Press Club on Monday morning along with another HMK Associate Ravi and State Shivsena leader Thangamuthukrishnan.
If exercise of freedom of speech can border on the criminal under certain provisions of the NSA, brutally criminal acts of vandalism and violence let loose by some of the known and prominent political outfits in Tamilnadu in Hindu Shrines last week, should also attract the same provisions of the NSA. If fiery words uttered by hurt and wounded people can be treated as Criminal Assassins under the NSA by a responsible government, known antisocial elements and perpetrators of violence in temples and other places of Hindu worship should be treated as more dangerous criminal assassins ' criminals who cannot be given planned political exemption from the criminal provisions of the NSA. The larger issue is one of Impersonal Rule of Law versus Personal Rule of Men ' crafty, unprincipled, uncharitable, and singularly unscrupulous. There can be no state sponsored rationing of law relating to fundamental human freedoms such as freedom of speech, civil liberties, civic society etc.
The due Constitutional exercise of freedom of speech in Tamilnadu today is getting punished through the State denial of freedom after speech . The beautiful words of Arthur T Vanderbilt, in his classic work The Challenge of Law Reform become very relevant in the Tamil Nadu context ' 'We need to recognize concretely and at every turn the tradition of our law for giving the individual the greatest possible freedom consistent with the equal rights of others and with the needs of society, and that such freedom necessarily changes in its outward phases from time to time with changes in the social and physical environment of the age. Most important of all, we shall never dare to tackle the task unless we recover the conviction that dominated the minds of the makers of our republic in 1776 that individual men have the capacity by study, reason and consequent action to stake out the course of the future rather than merely observe social forces, impotent and powerless to change them.'