On hearing that the Supreme Court has directed the police to refrain from arresting Ashis Nandy, arguably India’s most celebrated contrarian, a wicked thought entered my head. Imagine a situation if, instead of Nandy, some other (perhaps lesser-known) non-political public figure had given similar offence, real or contrived, to a group that enjoys exceptional Constitutional protection? Would the Judges have used their common sense and brushed aside the contention that a casual statement in a discussion constituted an “atrocity” that must automatically be accompanied by a non-bailable arrest warrant against the deemed offender?
 
Asking an awkward question does not imply that I am demanding that Nandy be arrested and peremptorily sentenced to 10 years of rigorous imprisonment. Far from it. Nandy, as even his academic friends who signed petitions in his support maintained, was guilty of clumsy formulation, unwarranted impishness and even lack of empirical rigour. These are grave charges to be levelled against a public intellectual of Nandy’s standing. Anyone else would have been pilloried mercilessly for such failings and perhaps even been castigated as a “goonda intellectual” –Dalit activist Kancha Ilaiah’s gratuitous description of Arun Shourie and me at a CNN-IBN programme last week. But since Nandy’s heart was apparently in the right place, his defenders insisted that a literalist interpretation of the law would be a travesty.
 
I have enormous sympathy for this argument which also has found favour with the Supreme Court. Nandy’s analysis of the social contours of corruption would not have contributed to social tensions. Indeed, had it not been for a panelist who carries a permanent chip on his shoulder, I doubt whether it would have been noticed outside the Jaipur Literature Festival venue. After all, such festivals are occasions where the chattering classes can let their hair down and say a few outrageous things—as long as some red lines aren’t crossed.
 
By suggesting that the corruption story in India couldn’t be written without a special section on Madhu Koda and that Bengali wholesomeness had been preserved by maintaining the caste character of bhadralok society, Nandy did cross the Lakshman Rekha. Interestingly, as a British MP of African origin pointed out, so did former diplomat Pavan Varma when he alluded to the “half-castes” of the former British Empire. But since Varma’s target was cultural inter-mixing and a defence of national purity, it was overlooked. I daresay if Varma had spoken in a similar vein at a literary meet in Britain, he would certainly have been booed by the audience. He may even have had a case under the Race Relations Act slapped on him.
 
Of course, if such a case had indeed come up before the British courts the judges would—like our Supreme Court—have dismissed it out of hand. Labelling a phenomenon as ‘half-caste’ is very different from a racist assault on miscegenation. The law, as Mr Bumble famously said in Charles Dickens’ Oliver Twist, “is an ass—a idiot.” But experience also tells us that “show me the man and I will show you the law” principle is a universal one. It is also one that is unduly influenced by prevailing fashion. If the citadels of intellectual power in India had not stood by Nandy, it is entirely possible that a ham-fisted state machinery would have harassed him no end.
 
There are two possible conclusions from the fuss over Nandy. The one that may strike a chord among the permanently aggrieved is that there is not enough justice to go around, and that the man got away because he was well connected. A less famous pamphleteer who may have put the same views in colloquial terms would undoubtedly have been languishing in jail by now, completely un-mourned.
 
The other conclusion which I am tempted to pursue lies in a simple question: why have such absurd, inflexible draconian laws at all? This is a relevant query in the context of today’s India. The past few years, especially since ‘civil society’ became the arbiter of right and wrong in society, has seen every crime, misdemeanour or a perceived act of injustice being accompanied by spirited and angry demands for harsher laws. The Roop Kanwar sati was followed by a new law that made the ‘glorification’ of that awful custom a crime; the rise in Dalit assertiveness was accompanied by the Act that landed Nandy in such a mess; dowry deaths prompted legal changes that turned the presumption of innocence on its head; and the outrage against the Delhi gang-rape last year is likely to lead to a significant enlargement of the legal meaning of rape.
 
The point to note is in all these legal modifications brought about as a consequence of sectional indignation over horrible events. Yet, no one can seriously deny that most of these draconian laws carry the potential of cynical misuse. The SC-ST Atrocity Act has been used to settle personal scores, the Dowry Act has been used for extortion, and I have no doubt that the new rape laws may also become a cynical plaything in the hands of the unscrupulous.
 
In recent weeks, the quality of Indian democracy has been compromised by assaults on basic freedoms. What is curious is that every assault has had the backing of the letter of the law. It is time India explored the virtues of less laws (however well intentioned) and more freedom (however ill intentioned).