Wednesday, August 5, 2015

Repeal the First Amendment

Another week, another ban. A week that should've been a great one for the Modi sarkaar with the suspension of Congress MPs from the Lok Sabha as well as the historic Naga Peace Accord turned into a nightmare that reduced the government to a laughing stock and showed the sheer inability of our archaic bureaucracy to logically regulate the Internet. The ban on 857 websites that supposedly hosted pornographic material (although many of them actually didn't), popularly dubbed the #PornBan, was a knee-jerk reaction to obvious goading by the Supreme Court, on the back of a PIL filed by a lawyer by the name Mr. Vaswani, who clearly has a moral opinion about porn, which he backs up with some cherry-picked data.

The more opportunistic would simply jump at this chance to blame the BJP, but the fact is that the Congress is also infamous for banning Facebook pages, Twitter handles, books and websites. Lest anyone forget how section 69 of the IT Act, as amended, got there in the first place. And while the Supreme Court was presumably against the idea of the state telling people what to do with themselves in the privacy of their homes, it did not simply toss out this case for the frivolity that it oozed. But why should it? Even the Supreme Court is not above basing judgments on moralistic grounds, shrouded in vaguely-defined laws.

The fundamental problem here is that the Constitution of India was amended for the very first time, way back in 1951, to give the state the power to make such laws and the judiciary the power to use them to cover up for judgments based on morality. The First Amendment snatched away our rights to free speech and expression (including, retrospectively, through online content) for vaguely defined terms. It put the burden of proving necessity on the individual and not the state. In effect, it put the state above the individual. And for what? To stop the press from criticizing the Nehru Government's socialist policies!

There is no point discussing the pros and cons of the #PornBan, neither is there any use in appropriating blame to anybody, because the real villain (Nehru) is long dead, with his progeny left to make fools of themselves and the country. The fact is that the #PornBan is not even enforceable because:

  1. The government just doesn't have the capability to know what sites host child porn and what don't, and it would be ridiculous to ask ISPs to find out;
  2. There are so many millions of such sites and so many more keep popping up that the government would be tying itself up in knots to even manage a fraction of it; and
  3. There are many loopholes around any ban, including something called Browsec (a plug-in revealed to us Indians by some Pakistanis who needed a way around their own ban on YouTube). 
The only thing to discuss is that the state cannot be allowed to take away our natural rights to free speech and expression. The original sin is in the First Amendment - only repealing that can provide a permanent solution to the question of whether India is the People of India or the Government of India, because it is clearly not both. 

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