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.