When Justice Chandrachud, the dissenting judge in the UIDAI judgment, chose to remain mum on the contentious issues while delivering a lecture in Mumbai on Independence Day
LITERATURE Live! Evenings, a Mumbai-based lecture organiser, has been hosting an annual Independence Lecture, for the last seven years, having notables from a variety of fields to talk on subjects of their choosing. This year, it invited Supreme Court Justice Dhananjay Y Chandrachud, who decided to speak on “Imagining Freedom Through Art”.
As the crowded room expected, his talk covered the entire ambit of art forms, and importantly, on the forms of expression that have characterised the intertwining of India’s political evolution through the independence movement, until today. Along the way, he mentioned the contributions made by extraordinary artists, across the world, apart from India, to the enrichment of discourse on freedom. Even street art, in the form of graffiti on walls, found a place in the lecture, with the mention of stencils as a means of expressing instant art in public spaces, before state forces can arrive to penalise the artist.
Following the lecture, the floor was thrown open to questions from the audience. Many of the questions, ignoring the lecture itself, were about his noteworthy cases, about the dissenting judgments for which he has justifiably earned plaudits, and about his penchant for writing detailed and learned affirmative opinions.
Two questions about the arts, however, did not elicit quite the same level of erudition, surprisingly, from the learned justice. The first asked why, even after over 70 years of independence, the spoken performing arts, in the form of theatre and film, still need to undergo quasi-legal pre-censorship. For the latter, it is particularly antediluvian, as television broadcasting has been operating for decades in India without any such curbs on freedom. The speaker engaged, rather unexpectedly, in whataboutery (how is child pornography to be handled, and so on).
The second, by this writer, questioned the stencilled artwork that formed a giant backdrop to the event itself.
As can be clearly seen, it depicts, among other symbols (note the hackneyed rainbow on the left, reflecting Justice Chandrachud’s acclaimed affirmation of gender fluidity as a right, striking down the notorious Article 377), the brand image of UIDAI. It is Justice Chandrachud’s outstanding dissenting opinion, sole among the five judges who finally heard the multiple cases filed against the operation of the UIDAI in India, that has taken the entire world, or at least the legal fraternity of the entire world, by storm.
The courts of multiple democratic nations are already quoting the dissent as a legal foundation for disallowing the operation of national identification systems, in the teeth of attempts by UIDAI to offer paid services to other nations. Sometimes this is in partnership with the World Bank and its coercive offers of the ID4D program, identification for development, that not very subtly imply that the rich economies will no longer share the global wealth to make the world a level playing field for people unless their personal data is abstracted and sold first.
It is therefore particularly ironic that India itself is shackled by a majority opinion whose drafting has been strongly criticised for, among other things, its lack of both scholarly writing and insightful examination of the merits of the case. Notably, the majority opinion appears to ignore evidence submitted before the court in the form of affidavits and petitions, and arguments presented in the course of the extended hearing, preferring instead to redefine the law of evidence by accepting assertions made by the state, in the form of a slideshow. The latter was perhaps the most visible use of technology in any court ever, in a case that intimately swirls around the legitimate uses of technology in society.
While the hearing itself stretched on for several weeks, a huge pressure on a Court where a single Justice may face as many as 250 cases a week, it is nothing compared to the extraordinary delay taken in getting it started, a delay of several years, punctuated by interim orders that threatened, fruitlessly, punitive action for repeated contempts of court by the State. A final delay was occasioned by the State denying that personal privacy was a fundamental right. That last desperate attempt was struck down harshly in a landmark judgment, with several notable opinions written, including one by Justice Chandrachud. Neither the manifold contempts of Court nor the thinly veiled diversion has ever been penalised, however.
That was in 2017. A little over a year later, the heart of the judgment was eviscerated, with a majority opinion (and the famed dissent by Justice Chandrachud) allowing the identification scheme to continue to breach the privacy of Indian residents. However, this is only for those on welfare, and those paying taxes, and it is left to the imagination of fiction writers to guess who is not, therefore, covered. Contra the manner in which the Constitution is accepted today, no time limit is envisaged for such breaches.
The image itself, against the backdrop of which Justice Chandrachud delivered a masterful summary of the manifold scope of art to express and define freedom, is certainly peculiar, although not particularly unique. Artful, if not quite artistic. It is hard to imagine what the artist was thinking, and especially hard to believe the artist was thinking of freedom. It is quite impossible to understand what the corporate world, that paid for the event, might have been thinking, to consider this sketch appropriate for a talk by this, particularly esteemed speaker.
The images contain two stencils, a device that Justice Chandrachud took pains to draw the attention of the audience towards, as a tool for resistance artists to rapidly create street art, in the teeth of oppressive police and armed forces occupying public spaces. The venue, the lofty rooftop restaurant of a landmark hotel in Mumbai, the country’s commercial capital, is hardly such a space, nor is an expensive digitally printed banner an expression of particularly risky creativity.
One of the symbols the stencils depicts the Supreme Court building in Delhi, whose domed profile is a striking piece of architecture. The other is a section of the UIDAI logo, an artwork that symbolically takes a fingerprint to represent the supposedly (never proven, and impossible to demonstrate) inviolable nature of biometrics. However, the two are curiously juxtaposed, with the latter placed superior to the first, indeed, the Court was almost invisible to the audience itself, except those august souls sitting in the front rows, the special invitees of Corporate and Legal India, together with luminaries from The Arts. The national flag colours splash across the two in undulating waves. The truncated logo, for all the world like the fictional Kraken’s head, eerily looms out of a sinister saffron net, with the Supreme Court below it a vessel sinking into a green sea, its hull perhaps permanently punctured by powerful suckers in its octopian arms.
What then, did the learned Justice think of this art? What opinion might he have formed, from his incredible breadth of reading and experience? Was he thinking of John Wyndham’s dystopian novel, where it is ubiquitous bacteria, and not human ingenuity, that finally vanquishes the unconquerable Kraken? Could it have been the Mahabharata, where the ultimate battle leaves the Rightful five pillars of the state in victory, but the broken corpses of the hundred-fold people, through their blind king, much like Justice, must remotely be told of the utter destruction wrought on that potholed and nuked battleground? Redolent, one might conclude, of the manner in which their Constitutional freedoms lie in tatters today, thanks to the majority opinion in the UIDAI case.
Perhaps we shall never know, for Justice Chandrachud, after a careful look at the stark symbolism that formed the backdrop to what had been, until then, a delightful evening, decided that he would rather not comment.
(Vickram Crishna is a petitioner in court, whose case against Union of India and Others, against the operation of the state-operated national identification scheme, was heard by Justice DY Chandrachud in the 5 judge-bench headed by the CJI, Justice Dipak Misra. Views are personal