Puttaswamy vs Union of India: The power of one

The right to privacy judgment reinstates the individual as VIP 

(Published on August 26, 2017 in Business Standard)

On Thursday, August 24, a nine-judge Supreme Court bench delivered a unanimous verdict upholding privacy as a fundamental right intrinsic to Article 21, the right to life and personal liberty. You cannot possibly overstate the importance of this judgment. If you don’t like detail, just eyeball its magnitude by counting the number of pages it took up in your Friday morning newspaper. I counted eight pages in mine.

Sounds nuts, right? It’s 2017. Do you have the slightest doubt that privacy is fundamental to living your life in peace? And yet, until now it has never been legally spelled out, even as privacy is being battered by governments and corporations who see leverage and money in ever more access to your personal life. 

Hearing Justice K S Puttaswamy’s petition for a fundamental right to privacy was made urgent by another Supreme Court petition challenging the government’s attempt to forcibly link PAN and Aadhaar numbers. The petitioners argued that collecting, sharing, selling, or using biodata, mandatorily and without consent, violates bodily integrity, informational self-determination, and personal autonomy. They were barred from arguing on grounds of privacy, because the government insisted that there is no such thing, and that the 9-judge bench hearing that matter should first come to a decision.

In fact the government took an obnoxious anti-people, anti-rights legal stand, arguing that the idea of privacy is bogus, that the Constitution deliberately left it out, that Indians don’t need privacy because they tell their life stories within five minutes to strangers on a train, that the poor don’t care about privacy and are too backward to deserve it, that it’s an elitist concern, that it impedes transparency and social justice. It argued that making privacy a fundamental right would open a flood of litigation.

Damn straight it will.

This judgment is, of course, a much-needed boost for those challenging Aadhaar while the government and its cheerleaders sing loud hosannas to an intrusive data raj in the name of prosperity and national security. Keep your eye on those hearings, good people, if you oppose legal sanction for state surveillance and non-consensual data access. 

But Justice K S Puttaswamy (Retd) vs Union of India is not a judgment so much as a legal earthquake. It explicitly overturns the infamous 1976 ADM Jabalpur ruling which allowed Articles 20 and 21 to be suspended in a situation of Emergency. (Historical frisson: Justice Chandrachud fils overturned Justice Chandrachud père). It places sexual orientation in the realm of privacy, eloquently shredding the illiberal reasoning in the Koushal vs Naz Foundation ruling which junked LGBTQ rights. It is now probable that LGBTQ Indians will win an absolutely foundational victory.

The judgment touches on many things that liberal-minded Indians have been growling about—what we eat and wear, who we love, what we say to whom, what we are forced to do in schools. I’m not a lawyer, but it seems to support challenges to such momentous things as the beef ban, and those who would impose social vetoes on food or thought and expression, and would force religious compliance, social homogeneity, and brute nationalism. 

It is, in sum, a clear, elegant, and rousing reaffirmation of India’s best liberal, rights-based, pluralist, Constitutional values. It comprehensively rejects majoritarianism, restrains the state from overreach and impunity, and reinstates the individual as the autonomous building block of national life, with a “right to be let alone”. 

The judgment dropped on India like one of those faraway mega-tonne bombs that isn’t heard so much as felt as a blast wave. It isn’t yet law; it merely sets the ground for law that the government must now pass. Its contours will continue to evolve on a case-by-case basis. Like all fundamental rights, it is subject to reasonable restrictions, which will be much debated. But for hundreds of millions of Indians, Thursday August 24 was a great day.

Days like this are rare at a time when justice can be so perverted that a state prepares for shutdown and puts the army on standby in the face of bullying threats because an alleged rapist might be pronounced guilty. It was a day when Twitter felt like a warm bath of endorphins, and right wing trolls were too flattened to fling faeces. The government did made a contemptible spectacle of itself, trying to claim credit for what it brazenly opposed, but that’s all right, we all needed a good laugh.

The euphoria that this judgement produced, the goosebumps and lightness, is how citizens want to feel—validated, free, joyous, and hopeful about India.  

And it proved the power of a single person with initiative. I’d like to envelop 91-year-old Justice K S Puttaswamy (Retd) in my arms, and give him the hug of his life.    

Kiran Nagarkar, a perfect storm

Brilliant, inspirational, inexplicably underrated.

(Published on August 12, 2017 in Business Standard)

Kiran Nagarkar’s novel Saat Sakkam Trechalis, written in Marathi, won the HN Apte award for best debut novel in 1974. Forty-three years later, the novel is being re-released in an English translation titled Seven Sixes are Forty Three. The room was reasonably full, but nowhere nearly as full as it should have been for a literary supernova. 

Literary supernova, you say? Kiran who, again? 

The evening was unpleasantly monsoon-sticky, but I—and maybe Nagarkar himself—would chalk up the middling attendance to his being, by my lights—and perhaps also by his—the most underrated and overlooked writer in the tiny hothouse world of English-language Indian novelists. He has never been appreciated fully or widely enough, and his lousy luck with the influential Indian literary establishment must have been at its lousiest when his masterpiece novel, Cuckold, was published in the same year that Arundhati Roy blew every other literary name and event out of the water by winning the Booker for The God of Small Things.

I will say upfront that I am an ardent fan of Nagarkar, and have been from the moment I read Cuckold all those years ago. It blew my mind. And it bombed in the market. “I consider it an absolute classic,” he told an interviewer in 2015. “If nobody agrees with that, it is too bad.” Does that sound like arrogance? I think it’s simple self-recognition, and you know it's real when an author remains sure of his ability and achievement despite being widely ill-received (one critic, on hearing of the English translation of Saat Sakkam Trechalis asked, Shouldn’t it be translated into Marathi first?). I don’t think Nagarkar is above being upset by ill-will and lack of recognition, but I suspect that he remains grounded in the certainty of his superpower, which is the ability to inhabit and express every shade of human feeling and expression from the most rarefied exaltation to the filthiest gutter low.

He has said that he would love to receive an award every day; yet, when he once got notification about an award, he forwarded it to someone else—and inadvertently back to the sender—darkly mocking it as spam. (I can’t now recall which award it was; Nagarkar has won a Sahitya Akademi Award for Cuckold, and an Order of Merit of the Federal Republic of Germany, which is Germany’s highest tribute to individuals). 

That frictional cohabitation of self-belief and self-doubt is only one of the many multitudes he contains—he strikes me as both controlled and wild, both prim and bawdy, wild with both grief and joy, both depressive and high-spirited prankster, mannered and savage, earnest as well as ironic, both elegant and potty-mouthed, self-possessed and adrift, a bon vivant as well as an ascetic, capable of both exaltation and desecration, tragic and comic both. 

It is, of course, his gift. He’s a Rabelaisian rampage on legs, a walking carnival, at once blaze and blackness. It’s as if someone stuffed into his thin, tall, stork-like frame a cosmic storm—as if, if he opened his mouth, you would see all the terrifying universes.   

I wondered what a writer like Nagarkar would want to do, about a national historical moment he is so sad and angry about—a moment in which, forget literary criticism, people like him might well be demonised as immoral blasphemers, a moment in which the exciting potential of literature, history, science, education, and human behaviour is all being trimmed and harnessed into the service of a narrow, controlling politics. I asked him if he had an answer to what one can do about that.

He had only one answer: I don’t know, but don’t give up. 

I got from that event exactly what I needed just at that moment: a bit of hope and a bit of inspiration. The hope that many people are individually multitudinous and recognise that things are not simply black and white; that many, many people resonate to the freedom of their own loves and griefs, made or unmade autonomously, regardless of circumstance. Not everyone can express it all the way Kiran Nagarkar can, but they defend it by living it.

And the inspiration of a soft-spoken 75-year-old (on stage alongside the steely, ballsy 90-year-old Nayantara Sehgal), still filled with fire and fury and love and cackling laughter, refusing—absolutely refusing—to give in or give up.

Life is generous, like that. It throws all kinds of horror at you, but also the things you need to get through it.

PG-13 nation

No adults please, we’re proud Indians

(Published today in Business Standard)

Another day, another state. The Opposition alliance stands shell-shocked at the altar as Nitish Kumar runs in slo-mo through tulip fields, hair streaming prettily, into the arms of his old flame the BJP. Much has been forgiven and forgotten. As @atti_cus observed on Twitter, Nitish suddenly remembered that Lalu is corrupt, and suddenly forgot that Modi is communal. With Bihar in the bag, the Opposition alliance in shreds, and a friendly President at the head of the Republic, things are looking bright and shiny for the BJP and Sangh Parivar in their relentless quest to turn India into a PG-13 country with a mean streak.

Besides cynically using soldiers on the border, besides tacitly-approved lynching, besides failing to make any economic headway, besides creating communal tinderboxes, besides trying to get everyone to accept Hindi as the national language, the thing that most irritates Indians is the way in which we are being culturally infantilised and sanitised.

Fully grown Indians are being nannied by patriarchal relics like Pahlaj Nihalani at the Central Board of Film Certification, who upholds his loopy version of family values by, for example, saving ladies from themselves. The CBFC refused to certify Lipstick Under My Burqa on the following grounds: “The story is lady oriented, their fantasy about life. There are continuous sexual scenes, abusive words, audio pornography and a bit sensitive touch about one particular section of society, hence film refused [sic to all of that].” The Film Certification Appellate Tribunal overturned the decision, and the film is currently in theatres, but my god, should the arts be at the mercy of people like Nihalani?

We’re being supervised by people like Dinanath Batra, the Rashtriya Swayamsevak Sangh educator and educational activist who advocates post-truth textbooks that re-design history in alignment with the Sangh’s views. He’s willing to junk scholarship and academic integrity wholesale, in favour of propaganda. Kids really don’t need to know too much about Nehru or Tagore. Manmohan Singh’s public apology about the 1984 anti-Sikh riots in Delhi should be removed because it was only put there to make the Congress look good—plus, it automatically makes everyone’s eyeballs swivel to where Mr Modi stands, not being contrite about the 2002 Gujarat riots. Kids don’t need to know that Hindu society didn’t treat women well, or that Mughal rulers could be benevolent, or that the destruction of the Babri Masjid helped the BJP grow. And why not tell the kids that Maharana Pratap, not emperor Akbar, won the legendary battle of Haldighati? Truth is entirely expendable in the all-consuming quest to somehow, by whatever means possible, feel proud.

We’re being administered by a central government whose opinion of Indians is that we are too poor and socially backward to deserve a fundamental right to privacy, and should instead be proud and happy to let proud and happy businesses exploit our data. This is not only the very definition of paternalism, but also at sharp and confusing odds with the same government’s insistence on our mega-global-super-greatness.

We’re being ordered, by our courts, to love and respect India—or, since that’s not enforceable, being ordered to put on ritualistic displays of such love and respect by standing for the anthem and singing patriotic songs and installing flagpoles and bits of military hardware in universities.

Confident countries that believe in themselves don’t feel the need to regulate citizens in this pathological fashion. It is the ferment of plurality, dissent, individuality, and liberty that fosters creativity, innovation, betterment, and excellence. It’s the feeling of being free, and treated fairly, that makes people feel they have a stake in their country. That feeling, of having skin in the game, is the definition of patriotism, and it is earned, not legislated.

The Sangh seems tormented by self-esteem that is not just low, but infected and seeping. How terrible this unquenchable thirst for cultural validation, a thirst so great that you’d think that the Hindu right has been a tiny muzzled minority since Independence. They now have the political and possibly even the cultural majority. Why, then, are they still hankering to be included by the despised left-leaning media? Pride typically manifests in calmly and confidently going about normal life, so why are they spending their time insisting on red-eyed, frothy-mouthed assertions of pride? If their worldview is so self-evident, why are they having to force people into their way of life? Why so much bluster?

The Sangh stayed largely aloof from the freedom struggle. It may be that its own preferences are for structure and instruction over freedom. Its version of freedom may be the freedom to be culturally restrictive. But you can boss around fully grown adults for only so long before they turn around and start giving you lip.

Being liberal in #NewIndia

Don’t let the right wing yank your chain.

(Published on July 15, 2017 in Business Standard)

There was a moment, in the aftermath of the terrorist attack on Amarnath yatris in Jammu & Kashmir, when it seemed as if social harmony in India might be in serious trouble. But of course, it was just one more piece of kindling tucked into what is already a raging conflagration.

On Twitter the next day, the right was aquiver with rage—but over liberals, not over the attack. It spent its time accusing people of not condemning the incident, as if individuals have the same duties as political spokespeople. Political PR channels thought the most trenchant question was: Where is the award wapsi gang?

You’d think that liberals would recognise this kind of baiting as designed to distract, and ignore it. But liberals are widely painted as hypocrites, and the charge of hypocrisy sparks a reflexive indignation in those good liberals who hold to principle, not party. It makes people who don’t need to prove a thing, spend their time proving things.

So liberals lined up for inspection by denouncing the attack not just from the heart, but scrupulously, as if lives lost are not clearly saddening. The heartfelt #NotInMyName campaign against lynch mobs, which attracted significant crowds, coverage, and right wing ire at their spontaneous protest in June, came out again to protest the attack in J&K. Good for them, but I would like to think that they didn’t do so under pressure to stave off the charge of hypocrisy. A terrorist attack is not in anyone’s name.

Amid the rubble and smoke on social media, too few people focused on the only consequential issue: investigating and questioning the security failure.

Well, dear liberals, that’s a mug’s game. Why are we allowing ourselves to become entirely reactive, squashed into tiny-minded terms set by people whose first and last recourse is whataboutery?

The liberal heart—by and large, let me not presume to speak for all—sticks up for things like non-violence, peace, diversity, freedom, and inclusiveness. It’s kind of a given that we don’t want anybody to be beaten up, murdered, or exiled, to be terrified, to live as second-class citizens, to perpetrate or be subjected to violence, to be discriminated against, to be oppressed by poverty, unemployment, illiteracy and illness. It’s a given that we see freedom, rationality, and constitutional rights as a good.

Why, then, are we constantly giving in to the pressure to display these beliefs constantly in any way other than living them by refraining from violence and hate? There is no need to jump when some anonymous troll snaps his or her fingers. We should feel free to engage out of choice, or to not engage at all. We should stop worrying that our beliefs will be worth less if we stop polishing them up for people who spit on them anyway. Liberal politics is live and let live, though comment is free. How you live serves as a much better track record than your timeline.

It is Hindutva, by definition, that seeks to exclude, dominate, censor, and interfere in private citizens’ lives. It is Hindutva that demands homogeneity, conservatism, obedience, deference to authority, censorship, and patriotic one-upmanship, in the name of aggressive nationalism. It is Hindutva that wants to drag us into the public square, and place on us the burden of proving that we belong. That politics—which bows to the state without respecting the Constitution—is too busy tending to its psychic wounds by justifying violence, to feel compelled to condemn violence. Hindutva’s political leaders, who do have a public duty to be seen and heard, say nothing, or make hateful statements—yet somehow, it is liberals who feel pushed on to the back foot.

Time spent being defensive about what we do not do, rather than on simply doing what we do, is time straight down the cosmic toilet. A healthy liberal society spends its waking time working, playing, keeping house, loving, innovating, expressing itself, learning, staying healthy, respecting rights and the law, holding power accountable, and meeting its friends. It does not spend its time trying to persuade heckling strangers that it isn’t murdering Hindus, or getting paid by Italians, or working for ISIS. It just lives and lets live. 

That doesn’t mean ceding vocal public space. It just means that it’s time to step back from the toxic paranoia, gas-lighting and straight up lies on social media, stop being manipulated and provoked. It’s time to take a breath, and refocus on the issues nobody wants us to focus on: unemployment, economic and agricultural crises, the destruction of our institutions, the death spiral in education, the shredding of our social fabric, the slow choking of diversity, and the rapid sacralisation of the state. 

I’m not saying we can’t get online to poke a few bears, just for fun. But we should choose to.