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17 December 2019 | Vidhi Annual Lecture

BETWEEN SCYLLA & CHARYBDIS:

INSTITUTIONAL AUTONOMY IN DEMOCRATIC
GOVERNANCE

Gautam Patel

Good evening. It is a privilege to be here. The Vidhi Centre for

Legal Policy’s two previous annual lectures were by Justice
Chelameswar and Justice Ruma Pal, and that makes this invitation a
very special honour.
My thanks to Arghya Sengupta and his team at Vidhi.
The topic today is a difficult one. I have attempted to shape it as
best I could, but there is at least one thing I cannot and will not be
doing—reciting which judgment of which court of how many judges
said what. Even if time permitted it, and while it is the stuff of much
entertainment for judges and lawyers, I imagine most would find it
very dull indeed.
History, culture, art, liberty, constitutional rights and freedoms—
in a word, everything that defines us, or should define us—are among
the most fundamental issues that affect any body politic. These should
be the subject of constant grappling and continued discourse. Not only
is the space for this kind of discourse shrinking in this country, but,
and perhaps more troubling, the discourse itself is increasingly
regarded as irrelevant.
It is not.
The general term ‘discourse’ can indicate a limitless palette. In any
truly civil society, it means a dialogue, an exchange, a conversation. A
meaningful discourse has two or three essential requirements. First, it

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must be civil. As Justice Chandrachud wrote in a judgment delivered

when he was a judge of the Bombay High Court, the discourse of law is
the discourse of civility. This is true of every discourse and every
conversation.
Increasingly, expressions and outpourings of anger, venom and
vitriol both in speech and in writing seem to have edged out all
semblance of discourse. We do not have conversations. We have
tirades and shouting matches, and I do not have to tell you where you
can most regularly view them night after night.
As William Davies writes in Nervous States: Democracy and the
Decline of Reason, the requirement or mandate of civility in discourse,
especially scientific discourse, is well established. It was a norm with
the Royal Society, whose members were obliged to be respectful with
each other, and never violent in speech or deed. There evolved a style
of debate in the Royal Society, Davies says, that was marked by sharp
disagreements but always polite.
“A style of speaking and arguing emerged which allowed
one scientist to challenge the theoretical statements and
reasoning of another, without seeming to challenge his
character or intentions. These modes of etiquette, which
have evolved into contemporary norms of scientific
speech, serve to keep personal identities and feelings out
of the space of disagreement. Throwing them back in, for
instance by suggesting an expert is motivated by some
personal ambition or grudge, is the main strategy of those
wanting to discredit the scientific establishment.”
He goes on to mention that digital and online media are a gift to
those opponents, stretching the ideal of objective criticism to breaking
point.

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Second, a conversation is not just about talking. It is also about

listening, and the best conversations are had with those who are close
listeners.
Nobody is really listening, and nobody is really being civil.
There exists a fabulous repository of civil discourse, and it is right
here with us. When courts deal with deep constitutional issues, they
often go back nearly seven decades to the Constituent Assembly
Debates. I assure you, on almost any aspect of Constitutional law one
cares to name, the records of these debates make for the most engaging
reading. It is impossible not to come away feeling enriched and
rewarded. Not only by the quality of the thought, but also by the
manner of its expression, and the realization that when you dive into
the record of these debates, you see dazzling displays of intelligence,
insight, foresight and sagacity. The Constituent Assembly had nearly
300 indirectly elected representatives. It included people from all
manner of backgrounds and cultures and political dispositions, from
conservative industrialists to Hindu revivalists and radical Marxists. In
that composition itself lies a lesson in plurality for us today and what it
really means to be broad-based and inclusive.
For me, the revelation was that not all, or perhaps not even most,
of these members had any legal training. In some debates, the
members say so. In others, we hear them speak of having little to no
formal education at all. Yet, in discussions on article after article of the
draft document, there were amendments proposed and debates had,
each reasoned, voiced in measured tones even when sentiments were
strongly held and tempers ran very high.
This is the temper of true discourse.
The third facet is that a discourse is meaningful only when it has a
focus and a starting point. As Davies says,
“it is impossible to imagine a democracy that doesn’t
feature disagreement. ... At the same time, no

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constitutional settlement can survive if everything is a

value judgment or a matter of opinion. There must be
some commonly agreed starting point that all are willing
to recognize before democratic politics can begin.”
If we, therefore, simply say ‘we should have more conversations’,
or that ‘we should have more civil discourse’, this is less than helpful.
We must know what it is we should be talking about, in a civil manner
with careful thought and listening, and why.
I propose this evening to place before you one area that seems to
me to have been almost entirely neglected in our contemporary
conversations.
I refer to the institutions of a democratic republic, and their
relationship with government and the people. Let me say first that I do
not refer to any particular government, nor to any particular policy,
action or statute. My focus is on the political and legal theory
underlying the functioning of institutions in a liberal democracy, to
show why a certain method of functioning is critical to the
maintenance and survival of liberalism in a democratic republic, which
is to say a democracy not governed by the majority or the mob rule, but
by the rule of law.
Let me explain quickly what I mean by ‘institutions’. I do not only
mean ‘institutes’ and I do not mean any particular organization. The
term, at least for this evening, means a set of relatively formalized
bodies that function under some statute or enactment, with some
regulatory oversight. In itself, this is also perhaps too broad: I do not
propose this evening to address any aspects relating to the judiciary,
the legislatures or bodies like the Election Commission, the
Comptroller and Auditor General, the Reserve Bank of India and so
on.
I believe there are other institutions, which we will now begin to
look at illustratively, that are just as important, many of which do not

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figure very much in our conversations. If they do, it is a momentary

expression of being aghast or appalled at some momentary act. I will
argue that these institutions, and others like them, are essential to the
survival of a civil society in a constitutional system of governance like
ours. I will attempt an explanation of why I strongly believe that it is
imperative to accord to these institutions this thing we will now
discuss, autonomy.
My argument is that autonomy, at least in the understanding of it I
will now present, is not merely desirable. It is fundamental to the
preservation and continued existence of a democratic republic under
the constitution and under the rule of law.

II

We must set this discussion in a contextual understanding of the

word ‘autonomy’. It is widely misunderstood and much given to loose
usage nowadays, most especially when talking about colleges and
universities. There, ‘autonomy’ means just being given a slightly
longer leash. An ‘autonomous’ educational institution is not freed
from regulation, oversight, affiliation to some university, recognition of
the degrees it confers and so on. It is not even entirely free in the
admission process. Its so-called autonomy is restricted usually to
course content and design and perhaps to conferring a degree.
Is this ‘autonomy’? If it is, is it sufficient?
But first, to the word itself. Autonomy is of relatively recent
coinage, around the 17th century CE. It is said to be derived from two
words in classical Greek, autos for self, and nomos for law. It therefore
means the right or condition of self-government; independence; and,
importantly, freedom from external control or influence. In philosophy,
particularly Kantian moral philosophy, it speaks to the capacity of an
individual to act objectively, or to an informed, objective standard,

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without being influenced or coerced. For bodies, therefore, it means

self-governing or governing independently. It may be contrasted with
its exact antonym, heteronomy, specifically acting on an another’s
dictates.
But this, though lexically accurate, is only partly useful for our
purposes today. It is not possible, I believe, to argue that ‘institutional
autonomy’ must mean the complete absence of regulation or oversight.
That way lies only chaos and anarchy and worse. It is also illogical, for
many of the very institutions in question are themselves creatures of a
statute. To argue, therefore, that they should be ‘totally’ free is
meaningless.
‘Institutional autonomy’ for today’s purposes is therefore a
reference to a concern of broad implication. The reference is not to an
operational autonomy, but to a functional and even structural autonomy.
It does not mean being anarchically free from oversight, but it does
mean not hewing or being compelled to hew to any particular political
or social ideology, most especially that of a government currently in
power.
This will serve as our working definition.

III

No discussion on institutional autonomy can avoid a reference to

what passes for the system of education in this country, particularly
post-school. At the broadest level, even the most casual look around
suggests that we have utterly lost our way. An education is not just the
acquisition of technical skills and proficiency. Yet it is to that that we
have reduced ourselves for the most part. The demands for technical
courses grow, while those in academic disciplines shrink. To have a
true education is to be steeped in a discipline, and, perhaps more
importantly, to acquire that elusive ability to constantly teach oneself,

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to be willing to be forever a student. It is not about copying or learning

by rote or applying only that which has been told to us.
The perception is that we need more doctors, engineers,
accountants, lawyers, but not historians, philosophers,
mathematicians, economists, scientists in both the social and physical
sciences.
Now couple this perception with that quintessentially Indian fear
of money, and you have all the makings of an educational catastrophe.
This decline began with the statutory prohibition on this thing
called a ‘capitation fee’ by colleges, particularly medical colleges. It
refers to the administrations of these college charging an extra or
premium amount, sometimes disguised as a ‘donation’, as a condition
to college or university admission and enrolment. Never mind that the
terminology is inaccurate. This is our common understanding of it.
There was nothing wrong per se with regulating or even capping fees,
or preventing extortionate demands. That is not, however, where we
stopped.
In the ten years between 1993 and 2003, the jurisprudential
landscape relating to educational admissions went through an
enormous metamorphosis. From the first 1993 Unnikrishnan case and
the 13 orders in the TMA Pai Foundation cases, the Supreme Court
oversaw the entire structure of admissions, minorities, affirmative
action and fees. In 2002, an 11-judge bench of the Supreme Court
addressed, among other things, the extent of government regulation of
private professional educational institutions. One of the matters that
came up was the regulation of admissions themselves, seen as an
extension of the fee-regulatory regime. The court mandated a division
between free seats and payment seats, and a common or centralized
test, plus the allocation of college seats to students. Cardinal to this
conceptualization was that a student could not pick her or his college,

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and the college could not pick its student. The student could specify
preferences, but was to be allotted a seat by a nodal agency.
The National Eligibility and Entrance Test or NEET, a successor
to the All India Pre-Medical Test, was introduced in 2012. Let me
explain how this works. The government decides how many seats any
college may have for any particular course. Exactly 15% of these are
free for the college to fill in any way it wants. Only 15%. One lawyer
recently described this to our bench in Bombay as the colleges’ ‘bread
and butter’. It is more like caviar, but never mind. The remaining 85%
is entirely controlled. There is a state level quota from that 85%. There
are affirmative action reservations, per class or category—different
ones for scheduled castes, scheduled tribes, what are called ‘other
backward classes’—a truly horrible expression—nomadic tribes and so
on. Within each, there are then some form of regional restrictions.
Maharashtra has been divided into three such regions: Marathwada,
Vidarbha and, unbelievably, a region called the ‘Rest of Maharashtra’.
In the constitution, this is supposed to be an administrative division,
but it has been engrafted into the college admission structure. An OBC
candidate from the Vidarbha region is restricted to colleges in that
region.
The strangest thing in all this, as I said, is that no college has any
say at all in who it will or will not admit or enrol in this 85%. All
placements in that percentage are done and only done by some external
government-run agency and there is actually something called a
‘matrix’, a computer-generated prioritized listing. The student herself
or himself has no option to select this or that college. She or he may
indicate preferences, but then must accept whatever is allotted or lose
a year and try again in an exercise known as ‘betterment’.
If this sounds bizarre, it is, and it has become a victim of the law of
unintended consequences. In the last academic year, several thousand
seats in Maharashtra went unfilled. All were in properly affiliated

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colleges. But all these colleges were outside the major metros. Within
the major metropolitan areas, the problem was the reverse:
overcrowding. Everyone wanted a college in Mumbai or Pune, and
there was at least one case before us where the physical size of the
classroom was too small to accommodate an intake randomly increased
by the regulator for no reason at all we could tell, with the result that
students were standing in the corridors and hallways outside. Three or
four highly fancied colleges went full. Others, because of their
geographical locations, ran to empty rooms. This again has a
downstream effect, because if a college does not fill its seat, its next
year intake sanction might be affected.
This control extends to curriculum design too. In another case,
there was a problem with one particular course—sculpture. It was not
specifically mentioned anywhere, neither in the fine arts nor in the
applied arts, and all these course are compulsorily approved, regulated
and controlled by an all India body. Some 60 odd aspiring sculptors
were left in this twilight zone, wanting to study it but unable to do so
because the was not ‘recognized’ or ‘approved’.
This kind of top-down external structural re-engineering
undermines educational institutional autonomy in a fundamental way.
One can have no argument at all against some level of capping on fees
to be charged, or on a reasonable direct affirmative action scheme. But
to allow for this level of regulatory over-reach presents another
problem, one to which we have shut our eyes. It is only skill-set
training by numbers. That freeing and opening of a young student’s
mind, the expansion of horizons so essential to a true education are
eliminated by removing autonomy from the equation.
Contrast this with any educational system in England or America,
our two most sought-after educational destinations, even for those
scrabbling to get into our professional training institutes. Can you
really imagine anyone telling the law, medicine or engineering schools

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at Harvard, Stanford, Columbia, Yale, Oxford or Cambridge that they

have no say in their student admissions and that who is to be admitted
to which school will be determined by some state-controlled computer
software?
As I said, this reduces education to a technical-skill acquisition
exercise, and it reduces what should be centres of learning and
education to little more than coaching classes.
The contrast with the few islands of education that remain is
startling. There are some that do still provide the true experience of
learning. The IITs are one example, and they have been outside this
deep admission-dominance by the government for a long time. There
are other examples as well, JNU and other universities here, and to
some extent some colleges and institutions in Mumbai.
The autonomy—and I speak now of the working definition with
which we began—of these and similar institutions makes space for
something I believe is integral to any education, to any system of
teaching and learning: doubt. In a recent IIT Mumbai case, there was a
question on a different issue (gender discrimination and harassment),
but the back story was that institute’s explicit support for the right to
speak freely, to doubt, to question and to dissent; and that
disagreement in the student body was entirely political, rooted in
belief, ideology, faith and an interpretation of secularism and liberty.
This, in an engineering institute.
This commitment to a plurality of voices and space for dissent is
crucial to any educational institution. The continuance of this
commitment and ideal, its maintenance and preservation are tied hand
and foot to the right of the institution to take an independent
decision—hence, autonomy—about the composition of its student
body, given certain reasonable requirements. If you take away that
right, I would argue, by an external determination of the student body,

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you take away the space and opportunity for his fundamental
construct.
Educational institutions throughout history have always been the
crucibles and birthplaces of dissent and opposition, spaces for the
positioning of countervailing perspectives. We know this since at least
the 1960s in the US and possibly even earlier. This is what we mean
when we speak of a liberal education.
A liberal education does not end with a degree. It sets the tone and
stage for a career and a lifelong engagement with new issues as they
come up. If a true educational institution is the birth place of liberal
thinking, then a life after and outside—and that includes governance,
law and politics—is the battlefield for a continued defence of
liberalism. It is for this reason that illiberal governments first target
centres of education and learning. They leave the skill-set training
institutes alone. They pose no threat. They cannot. But if you want to
rid yourself of the troubles of dealing with doubt, dissension and
looking askance in daily governance—in a word, liberalism—it is best
nipped in the bud, and what place better to quash it than its breeding
ground, centres of true education? This is the end of liberalism, and
the beginning of the end of what it means to be a democratic republic.
It is also the beginning of something else, and I will come to that very
soon.
By the way, I wrote this several weeks ago, not yesterday.
The most timeless and enduring defence of a liberal education and
what it his really means goes back to the nine astonishing lectures
delivered in 1852 by John Henry Cardinal Newman to the Roman
Catholics of Dublin. Long considered one of the great masters of
English prose, Newman’s religious journey took him from Anglicalism
to the Roman Catholic Church. These nine discourses have been
described as an ‘epoch’ in the life of every college student. Historians

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rank it with Aristotle’s Ethics as among the most valuable of all works
on the aim and purpose of education.
Newman’s position, beautifully stated, was that a truly liberal
education is founded on a knowledge of first principles and relations
rather than mere facts. This, he argues, is the idea of a university, the
best preparation for any career. Its attributes are ‘freedom,
equitableness, calmness, moderation and wisdom’. Liberal knowledge
is not just utilitarian information. True knowledge comes from
investing facts or mere learning with ideas. A truly educated person is
someone who is neither a man of mere information, one who
generalizes nothing, nor the merely opinionated man impatient with
facts and therefore unreliable in his assertions. Newman spoke to an
ideal, one of ‘clear, calm, accurate vision and a comprehension of all
things as far as the finite mind can embrace them’, something to be
achieved—he does not exactly how—by the ‘science of sciences’.
This is from the introduction in the University of Notre Dame’s
1982 edition of Newman’s work:
“If, divided in head and heart and crushed by his
vastly multiplied learning, modern man ... studies or
works in universities where specialists in the humanities
are cut off not only from those in the sciences but even
from one another, and where sometimes it almost appears
that every student and every teacher is simply on his own,
he might at first be inclined to dismiss an ideal like
Newman’s as the faded dream of a bygone age. Yet it is a
dream that somehow persists, even now, in demanding to
be lived; and we have in recent years seen our leading
universities making intense efforts to integrate their
students’ learning so that it does become something like
what Newman meant by knowledge. ... Today’s student
might well test his own university by asking himself what

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steps it has taken to encourage him at least to aim at its

realization.”
In places of education and true learning, therefore, autonomy of
the kind we defined is at its most elemental and most precious. Here,
in these places, it speaks directly to constitutional values and
freedoms.

IV

What about other institutions, or other types of institutions?

Indeed instances abound, as we shall now very quickly see, but even
the shortest survey of any of these leads us back to that same nexus
between autonomy, dissent, liberalism, democracy and the rule of law.
Take the Film Certification Board, that body we so often wrongly
call the Censor Board. The entirety of the working ethos of this body is
rooted in subjectivity. What film should fall into what class is always
subjective.
Our vocabulary in talking about it is distorted. It is emphatically
not a censor board. It has no power to ban. That is a power reserved to
government under a different law. It has the power and duty to certify,
and that means to classify. It can refuse to give any certificate at all, but
it cannot ban.
The Cinematograph Act provides general guidance, and there are
also some broadly-stated guidelines. But too often we see decisions
that have no discernible linkage at all to these guidelines. Why have a
guideline if one is not going to be guided by it? This is what prompts
courts to interfere and to take over the board’s function, because all
that appears is quirky subjectivity. This is changing under the
stewardship of Justice Sarin who heads the appellate body. He has
called for reasoned decisions, and I can only hope that his push

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succeeds. But even now there are multiple instances of unreasoned—

and unreasonable—decisions.
The controlling act speaks of the ‘opinion’ of the certifying
authority, and then it sets out the yardstick for arriving at this opinion:
against the interests of the sovereignty and integrity of India, the
security of the State, friendly relations with foreign States, public
order, decency or morality, or involves defamation or contempt of
court or is likely to incite the commission of any offence. The section is
intended as a solution to this problem of subjectivity. It makes it clear
that it is not any old opinion, but one to be reached for these reasons
that must inform the certification decision-making process.
Of these, the most difficult parameters are decency, morality and
the likelihood of incitement to an offence. In a word, just how much is
too much? And what, precisely, are the qualifications of the
certification board’s members to take a call for a nation of over a billion
people when it comes to what is ‘decent’ or ‘moral’? Is showing skin
‘indecent’? How much skin, and what body parts are we talking about?
Is telling of an extra-marital relationship ‘immoral’? Neither is rare or
unknown in real life; why should reel life be the stuff only of candy
floss? Life is as often raw, visceral, savage and barbaric as it is beautiful
and full of grace; and let us not forget this: art imitates life. Therefore,
we can no more control an artistic vision than we can control a human
being’s actions in reality. What the act cautions the body to do is,
therefore, be judicious and circumspect, and most emphatically not to
give vent to personal likes, dislikes and prejudices.
There is a case to be made here for less regulation, not more, and
to do away with the power to ‘order’, that is to say to command,
excisions or cuts in movies. No certification board should ever indicate
what should be cut. Why a director or auteur decided to portray
something in a particular fashion is a question of a highly
individualized artistic sensibility.

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Consider this: a close up of a hand holding a cut-throat razor

slitting the held-open eye of an animal—or is it a woman?—and
vitreous fluid spilling out. There is no plot to this work. Would we
order a ‘cut’? Why or why not? And of course this is from one of the
classics of world cinema, Luis Bunuel’s Un Chien Andalou.
Another example: a woman is gang-raped. To keep her from
revealing the identity of her assailants, they cut out her tongue and lop
off her hands, replacing them with tree branches. When she is rescued,
and her rescuer begs her to reveal the identity of her attackers, she
leans towards the camera and opens her bloodied mouth in a silent
scream. Later in this very work, a king is asked whether a father should
kill his daughter if she has been raped. The king agrees, and says yes,
she should; and the father snaps his raped and dismembered
daughter’s neck.
What would we do with a work like this? Would we pause and ask
ourselves if this is art or literature or merely gruesome and
unnecessary blood-letting and mindless violence?
The film is by Julie Taymor, her directorial debut. It features
Anthony Hopkins and Jessica Lange. It is called Titus.
And it is an adaptation of a work called Titus Andronicus, written by
William Shakespeare.
Would that make us change our mind?
For the film certification board, therefore, we have twin demands.
A narrow tailoring of what it can and cannot do, and, given that, a
functional autonomy. A too-amorphous latitude in the first leads to
unacceptable subjectivity, and a lack of autonomy, the second part,
brings us to unacceptable intrusions into artistic freedom.
Again: to illiberalism and the stifling of dissent.
When such autonomy is compromised by a real or perceived
externally imposed or self-imposed adherence to what might or might
not be palatable to those currently in power or to a particular political

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ideology, we are then heading in exactly the opposite direction from

our constitutional mandate.
We then have all the trappings of a fascist state.
Authoritarianism can take different forms. It is most visible when
imposed top-down, as we can so often see in brutal regimes, but the
other way of undermining a society predicated on individual liberty is
to eviscerate public institutions from the inside out. One way of doing
this is, naturally, to compromise their independence in decision-
making, that is to say, their autonomy.
Jason Stanley’s book How Fascism Works: The Politics of Us and
Them is a superb and eminently readable analysis of the methods of
this dismantling. Fascist states focus on dismantling the rule of law and
replacing it with the dictates of individual rulers or party bosses—and,
incidentally, an independent judiciary is a favourite target. Tyranny,
Stanley explains, referencing Socrates’ argument in Book 8 of Plato’s
Republic, is often the result of a strong man seizing democracy’s
commitment to liberty and free speech, and using it to consolidate his
position and undermine democracy itself. The essence of fascism is its
rejection of pluralism and tolerance.
These are very real perils for any government. I would argue that
any government that either explicitly or implicitly demands this sort of
fidelity is a government that, before long, is doomed to catastrophic
collapse and oblivion.
A liberal democracy founded on a constitutional precept is not just
a concept. It is, as Tom Ginsburg and Aziz Huq say in How to Save a
Constitutional Democracy, a matter of daily practice. This practice
depends on a degree of institutional differentiation—the doctrine of
separation of powers we all know of is one dimension of this. But it
also depends on key institutions that are born from constitutional
ideals, and are to be informed by those ideals, remaining autonomous
and true to the intent of their governing statutes, not to a malleable

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immediate political expediency. Many of the most egregious

transgressions of liberties come not from leaders themselves, but from
the civil servants and bureaucrats tasked with policy implementation
or governing this or that institutional body.
Parallel to the Film Certification Board are our state-controlled
cultural and art institutions. For the same reasons, they too, must be
allowed to function autonomously in service of their primary purpose.
All art is political, and art is nothing if not discourse and dissent. If it is
not that, it is just so much pap. The purpose of art in every form is to
question, to doubt, to look askance, to disagree, and to present an
alternative perspective.
In his finely realized address in Mumbai recently at a literary event,
reviewing the purpose of different art forms and their relation to
freedom, liberal democratic ideals and constitutional values, Justice
Chandrachud said that the libertarian idea of constitutional law wants
all individuals to be autonomous and rational. Yet, individual
autonomy is fragile. Institutional autonomy needs to be made of
sterner stuff. Conformity to a political or socio-ethnic ideology takes
away dissent, and by prohibiting it in a designated art space, takes away
the physical space for dissent. It must, I argue, be open to the director
of a museum or an art institute to insist that an artist or his work has
value and meaning even if it is directly opposed to, or even questions
or taunts, a particular ideology or stated political intent.
In India, this is much more important than we perhaps realize or
acknowledge for one overarching reason. The single largest patron of
the arts is the government. We do not have the kind of mammoth
endowments that museums and art centres, especially in America, do.
But a lack of financial autonomy must not ever be allowed to translate
into a stripping of functional autonomy. If we permit that, we suppress
and subjugate art. If we do that to prevent the articulation of an
opposing or countervailing narrative or perspective, then we drive

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ourselves away from our stated constitutional ideals to a place of

illiberal conformity.
Here is my real problem with conformity and illiberalism. It is
unspeakably boring. It is a land of pretty pictures, but nothing that will
challenge, question, doubt or disturb. Illiberalism speaks to a fulfilment
of predictability, of only presenting the already known. Liberalism is
about anticipation, and the exhilaration of uncertainty, of not knowing
what lies ahead. As Julian Barnes wrote so brilliantly in Flaubert’s
Parrot, the greatest pleasure in life is the pleasure of anticipation. Who
needs to burst into fulfilment’s desolate attic?
There is one other institution to which I must make a reference. It
is the statutory body constituted under the Right to Information Act. It
seems to me utterly illogical and absurd that this body should be
anything but autonomous, and possibly the most autonomous of all. Its
primary target in its statutorily mandated work is the government
itself. To alter its composition and curtail its remit so it serves the
government rather than the people for whom it was meant is an
unspeakable travesty. This approach is another inside-out damaging of
institutional autonomy, and it achieves an authoritarian purpose while
damaging the fabric of a liberal democracy. The right to know is a
game-changer, like the Right to Education Act, and it is a powerful
check on government excess. To be sure, the act can be abused. But the
fact that a statute can be abused is only a call for a judicious approach
in dealing with such attempted abuse, not a reason to jettison the
rationale of the statute altogether.

My argument today is that a government—any government—that

claims to be dedicated to the constitution, to democracy, and to
liberalism has nothing at all to fear from according a wide functional

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autonomy to its institutions and their processes. Its future is all but
assured. Ideas are bullet-proof. Dissent is what dissent does, and it
takes no defined form and is therefore impossible to stamp out. A
government that, instead, demands or even expects ideological
conformity from its key institutions, and thereby shrinks the space for
dissent, is an illiberal and undemocratic government that acts contrary
to a fundamental tenet of our constitutionalism. Any government that
demands such ideological conformity hunts the snark. It is a venture
doomed to failure.
Again, as I said at the beginning, this is not about any particular
government, or even any particular ideology, let alone any specific
state action or enactment. It is about the need to engage with the
theoretical underpinning of the importance of dissension in a liberal
democracy constitutionally required to be subject to and under the rule
of law.
These are, therefore, the conflicting choices before us today. To
one side is the perceived political threat that all dissent poses,
whatever its form. On the other is the peril of a loss of liberalism,
freedom, democracy and the rule of law.
Scylla and Charybdis were two mythical sea monsters from Greek
mythology. They lay on either side of the narrow strait of Messina
between Sicily and Calabria. Scylla was a six-headed monster or rock
shoal on the mainland, the Calabrian side. Charybdis was a horrific
whirlpool off the coast of Sicily. Between them, they posed an
inescapable threat to voyagers. Heroes from classical Greek mythology,
including Odysseus and Jason, had to pass between these two perils.
So do we today.
Homer says Odysseus was advised to sail closer to Scylla, thus
risking the loss of maybe a few sailors, rather than moving towards
Charybdis and risk losing the whole ship.

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That is also our choice today. And the choice we make will
determine not just our nation’s future, but its survival.
Thank you all again for being here, and for your patience.

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