Giving the doctor his due

Not quite black and white

Out of all the rights we are vested with, freedom of expression is arguably the most divisive. Here is the thing about free speech; almost everyone loves it and almost everyone is offended by it at some point.

When the Young Doctors Association in Punjab began its much maligned strike a couple of weeks ago, free speech arguments hardly figured in the discourse. The provincial government was not willing to have any of it. These people (doctors), went the argument, are under an obligation to treat people. They cannot be allowed to go on strike and contribute to the suffering of patients. There was no shortage of moralistic lecturing from the Punjab government and the media. Even television reporters who are supposed to do a simple job — report facts and spare us their personal opinions — could not help but throw in how the YDA was in the wrong. Some TV anchors went a step further and called the strike haraam —of course what good is an issue if you can’t throw in Islam, right?

I have kept debating with a few souls willing enough to listen whether the docs missed a trick by not arguing the free speech issue at the beginning. They should have seen the crackdown coming. There are no right answers to such questions of course; only less or more compelling competing claims. Some might question whether a strike is “speech” at all — since it also involves conduct that is expressive and therefore what is being dealt with is conduct and not speech. But marches and sit-ins are often treated as speech so how is this different? Are the competing values, i.e. human suffering for instance too powerful to allow such conduct? Things to think about.

Of course these people are government servants too so there is an added dimension; government servants are not always allowed the same rights of free speech as a private citizen. This then leads us to the question whether it is fair to expect a government servant to relinquish her free speech rights just because she takes up a government job? Do they enter a door beyond which their rights become less important? What are the limits? From what I know, these questions were not agitated before the courts in this matter. But these are compelling questions.

The provincial government will most likely be content with the High Court order directing doctors to get back to work. This makes you think what was the government thinking at the start of the crisis? Why didn’t the provincial government put a citizen as a petitioner before the High Court right at the start of this crisis with the aim of having the strike declared illegal? It would have meant the doctors would lose moral and legal authority right at the start. At least if I had been a Punjab government lawyer that is what I would have done on the first day. And the answer to the question, “what was the government thinking”, probably then is that the government wasn’t thinking much! Of course, public opinion matters and, of course, legislation on essential services allows the government to prosecute doctors but was that the right thing to do? I would argue not at all. The measures were oppressive and disproportionate. The government gambled on a public relations campaign and the media went along with it; young doctors were unfairly treated as the villains.

There was talk of people dying “because” of these young doctors. That is a huge claim. Causation is an immensely important matter. What evidence did the provincial government or the media have that what caused unfortunate deaths was the lack of availability of doctors? A thousand and one complications could have occurred with those patients. Without seeing any proof, no one should be blaming the young doctors.

Of course just because I argue that doctors were exercising their free speech right does not mean that I agree with the way in which they expressed themselves. Could they have chosen a more diplomatic and less damaging way? Sure. But is that my call to make? No because I or most people do not have access to relevant facts and complaints of the young doctors. Making an impact and causing discomfort is often precisely the point of a strike — regardless of who carries it out, whether it’s doctors in hospitals or lawyers marching on Mall Road (blocking ambulances for one or adding to their route time). I am not willing to believe that young doctors would have pursued such an aggressive line unless they felt really pressed. Their spokespersons say that promises made to them after last year have remained unfulfilled. They had a complaint, they wanted to make an impact and they did. Does that mean all consequences and modes of expression were justified? No. But that doesn’t make their claims less valid either.

Painting them as murderers or as heartless souls is unfair to them. People who work other government jobs for lesser pay might say, “but we never asked for our rights like this”. And my answer to that would be, well good on you but that was your choice. These folks made a choice and you don’t have to agree with it. Maybe years of living under dictatorships has consequences for societies that we don’t realize; since the population learns to live without rights, is it possible that it loses respect for people who aggressively assert their rights? Do we start thinking that since we have all lived without such rights so why can’t they? Isn’t that deeply sad at some level? And then to blame those people for consequences (murder) for which we have little but any proof?

I do not claim that there is always a right answer with such things. But is the basis of our actions going to be the belief that the opposing party is always wrong or that rights must only be exercised in the way that we want? If so, what good are those rights?

The writer is a Barrister and an Advocate of the High Courts. He has a Masters in Law from Harvard Law School and has a keen interest in Competition law. He can be reached at [email protected] or on Twitter @wordoflaw