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Subhadra sent me an email article about the recent spate of attacks on women wearing ‘western clothes’ in Bangalore. It’s disheartening to read them and ponder on the state of things in this Country.

In this earlier post, I have talked about morality and the Dworkinian conception of harm and the enjoyment of rights. I shall talk about it briefly here and go about an extension of it.

The Dworkinian concept of harm, also called the ‘harm prinicple’ rests on the idea that one should be allowed to enjoy his/ her rights as long as they do not affect the rights of others. First, conceptualized in his article “Do we have a right to Pornography”, it now lays the foundation of any debate on morality. This idea also does away with any role the State may claim to play as the upholder of morality and leaves the choice to the people itself as long as it does not affect others. Reading pornographic magazines and open sexual acts are a few of the examples that Dworkin gives to explain the ‘harm principle’.

More importantly, I saw this principle being applied completely in the context of anti-smoking legislation. It must be noted that the reasoning against smoking in public places is not that it is bad to the smoker itself, but that it harms the passive smoker and thus to discontinue the violation of his rights, the laws have been made. (See Murali Deora v. Union of India, AIR 2002 SC 40). This has also been explained in this previous post of mine here.

On the State being the ‘upholder of morality’ notion; it is sad that the Constitution contains various references [Article 19 (2) and Article 25 ] to morality being a ground for a restriction and it being used in the same manner even though the harm to others may not be evident.  

If this be so, then perhaps Mr Muthalik and the State should lay no claim as regards deciding on what people should wear or Drink.

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Below is Manav’s post on the Pink Chaddi campaing. Interesting read. May not be that legal though.

Where are they, those advocates of human dignity? 

While I am ensconced in Santa Clara, the internet serves me well in providing me with information on what is going on in our motherland. About a week back, all that I heard from home was on the Pink Chaddi campaign.

Initially, it amused me, made me laugh, was interesting. I thought it would be a good cock-a-snook at Those-Who-Are-The-Sole-Custodians-Of-Indian-Culture. Later, I thought more about it. It didn’t seem so funny then.

A few girls were beaten. Beaten badly. At least two of them were hospitalised. For being in a pub. The Hindu right evidently thinks that these women have strayed from the path of Indian Culture and Morality (“Women?” “Drinking?” “India?” Horror!). In fact, it was suggested that these women deserved the beating because they were “getting too close to Muslim men”.

And how did we- the liberal, the elite, the English-speaking (partly) convent-educated react? We, who speak for rights? We, who believe in equality, in human dignity, in the freedom of choice? What did this group of people do?

Decided to send pink underwear to the Sri Ram Sene. That’s all. Pink, because it was “a frivolous colour”.

Well, pardon me for my ignorance. Just what is so frivolous about being beaten up for choosing to go to a pub? What is frivolous about people making your decisions for you? Where you should be, what you should do, who you should “be close to”? Instead of making a rational point, instead of sending a message out saying such harassment is unacceptable, all we chose to do was send undergarments- the equivalent of saying “Nyah-Nyah, losers, you suck. Kiss my ass”.

Indian culture, morality, our notions of religion, are all fast becoming the domain of a set of right-wing reactionaries. Instead of ensuring that such interference ceases immediately, or even engaging them in debate, of trying to get them to see our side of the picture, of asking them what gives them the authority to interfere with our lifestyle, all we do is send them chaddis- thus suggesting that we, the liberals, don’t think their viewpoint befits more than insults, not even when it manifests itself in ways so entirely unacceptable to us.

No one I’ve been able to speak to has given me an answer to this one, let’s hope the comments do.

 

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The previous post correctly states my view on this subject. However, no critique of an issue would be justified without putting forth the arguments for the other side. In this post, I try to look at the possible justifications at the sanction against conduct levied by non- state actors in what seems to be immoral according to them.

A year ago, when that actress Shilpa Shetty kissed Richard Gere, the Supreme Court stepped in to quash the charges against her. About a week ago, Justice Muralidhar gave a landmark judgment quashing the charges against a couple kissing in public. The law now seems to be becoming more and more clear as to what kind of conduct is morally permissible, an aspect that is laudatory of the Court.

However, leaving the harm principle as dealt with in the last post aside, is it that the Court is only speaking for the ‘socially elite’ in this circumstance while a major portion of the society still thinks women going to pubs is bad and that public display of affection (PDA) should not be permitted. Are we seeing a difference of opinion between the Court and the society as to what constitutes morally permissible behavior ?

A pub going woman would argue that she has a right to do whatever she wants with her life and that neither the state nor the other members of the society should interfere in this right of hers. Quite true and I agree with her.

But she hardly represents 1 % of the Indian woman population and in a country of more than a billion, she’s a minority. What might constitute moral to her and people like us sitting and surfing the net everyday might not be so to the millions at other places.

Counter questions arise; is the idea of morality to be determined by what a majority of the society think to be so ? Whose morality comes into play when we talk of Section 294 of the Indian Penal Code ? To what extent can the Indian public honor the right to privacy ?

About 3 decades ago when the ‘social elite’ longed to read DH lawerence’s ‘Lady Chatterlee’s Lover’, the Court in Ranjit Udeshi v. Union of India, stepped in and declared the banning of the book constitutionally permissible. Then it was representing the will of the majority that thought such conduct to be immoral. The perceptions of morality keep changing in a dynamic society like ours and perhaps the Ram Sene people should understand that too. But a movement to counter it cannot be successful by sending him ‘pink undergarments’ but only by making a serious effort to develop the perceptions of others as to what can be morally right according to our views.

It is a futile attempt for an English medium student living in an urban town like myself to even try to argue for Muthalik and his activities. I wouldn’t either because I think that he is wrong in all aspects. But the point that I am trying to get across is the idea of moral permissibility that is now creating differing opinions with the Court and the social pub going elite on one side and a majority of the Indian population on the other. Apart from Dworkin’s reasoning, what possible could be a justification for such acts when a vast majority think such conduct is bad ?

At a time when questions of moral turpitude are being raised all over the country due to the assault on women at pubs in Mangalore, there comes a judgment, that stands out. While defining the contours of law and morality, the Delhi High Court has ruled that there is nothing wrong with a couple kissing in a park and that doing so would not be violative of Section 294 of the Indian Penal Code.

Noting that a public display of affection in the form of kissing does not in any way constitute obscenity and violative of public order, Justice Muralidhar dismissed the charges against the couple as laid down by the police.

Now the question of morality and what kind of perverse acts should be permitted by law has always been a debate. Those in favour of the public display of affection (like myself) turn to Dworkin’s “Do we have a Right to Pornography?” written in his book A Matter of Principle. In the article Dworkin makes a case for the open publishing and distribution of pornographic magazines and states that such an action is based on the society’s conception of individual liberty and privacy. Arguing that there is no harm to the individual himself/ herself with the expression of feelings in such a manner, Dworkin adds that there is no right of the State to tell the individual what to do, especially if it blatantly violates his liberty.

He however adds, that this isn’t the main concern. He states that it is not the expression of such feelings that matter, but the disgust caused to the public at large that is the main cause for concern in regulating such expression. He adds;

“Of course individual liberty would be very restricted if no one was allowed to do anything that any single other person found offensive. … The question is whether the harm to those who find offense would outweigh the desire for all those who wish to do what would offend them ?”

 

Dworkin says that the answer would lie in as to how such acts are perceived in the society at large and the level of maturity that is attributed to it. Regulation must not be such as to hamper the ideal of individual liberty that we hold so dear to ourselves.

Muthalik’s actions in Mangalore, Shilpa Shetty kissing Richard Gere and many other must be looked in the context of individual liberty and not what a third person would perceive of them. There should be nothing wrong with girls drinking in a bar and we must attribute to them that level of freedom. Not doing so, would make citizens lose their respects for Government (Dworkin, ‘Taking Rights Seriously’).

Justice Muralidhar’s decision I would say throws light on this issue and could be compared to Dworkin’s argument.

 

P.S. : I had the good fortune of clerking with Justice Muralidhar in 2007. Ranks amongst my best internship experiences. The judgment can be viewed at the Delhi High Court website.