SC Constitution Bench on Aadhaar and the Fundamental Right to Privacy – Day I

In October 2015, a 3 judge bench of the Supreme Court of India referred challenges to the Aadhaar program to a constitution bench. The reference was mainly to determine the existence of a right to privacy as a fundamental right, after the Government of India argued that there is no such fundamental right under the Constitution of India. The arguments were originally made in Justice K.S. Puttaswamy (Retd.) & Another v Union of India and Others. Under this petition, the Indian Government’s Aadhaar project was questioned on issues such as a lack of procedural safeguards, coercion for enrollment and blocking access to multiple schemes by permitting access only through Aadhar in this matter. Several petitions that address various facets of the Aadhaar project have since been tagged with this petition.

Nearly two years after this reference, a 5 Judge constitution bench of the Supreme Court of India (SC) heard arguments on whether the Constitution of India provides for a fundamental right to privacy earlier today. After hearing limited arguments from both sides, the Court decided that this limited question on the existence of a fundamental right to privacy will be heard and decided by a 9 judge constitution bench tomorrow (July 19, 2017).

The proceedings began with the bench asking the respondents to identify the scope of the question before them, and their position on the issue. The Attorney General (AG) stated that while it is admitted that there is a right to privacy under common law, the Constitution of India does not explicitly provide for a fundamental right to privacy. He further stated that based on the judgments in Kharak Singh v. State of Uttar Pradesh and M P Sharma and Others v. Satish Chandra it is clear that there is no fundamental right to privacy under the Constitution of India, and that subsequent judgments on the issue are per incuriam. The AG stated that the issue before the court is whether there is a ground to distinguish these two judgments.

At this stage, Justice Chandrachud observed that these judgments were made on the basis of the prevailing doctrine at the time as described in A K Gopalan v. State of Madras, which treated each fundamental right as an individual and separate right. He further observed that this doctrine was overturned under Maneka Gandhi v. Union of India, which provides for a new reading of fundamental rights, and that the rights must be read together.

Reiterating his earlier argument, the AG observed that the ratio in the Kharak Singh judgment clearly states that there is no fundamental right to privacy under the Constitution of India. He submitted that the immediate issue before the Court should be limited to whether or not the judgments in Kharak Singh and M P Sharma continue to be binding, or have been distinguished by the subsequent judgments (of smaller benches) on the issue.

Justice Chandrachud and Justice Chelameswar both intervened, pointing out that the Kharak Singh judgment is limited to a discussion on the right to privacy in the context of surveillance, and makes specific reference to the Fourth Amendment of the Constitution of the USA in this context. It was observed that while the judgment in Kharak Singh does refer to the lack of a specific right to privacy under the Indian Constitution, this statement is not central to the ratio in the judgment. Justice Chelameswar observed that it is difficult to accept an argument against a constitutional right to privacy if a common law right to privacy exists, and predates the Constitution. He also noted that several (smaller) benches of the court have since recognised the right to privacy under the right to personal liberty.

The AG questioned whether the present 5 judge bench, could overrule the Kharak Singh and M P Sharma judgments which were both made by larger benches (6 and 8 judges respectively).

Justice Chandrachud also subsequently reiterated his observation that the judgment in Kharak Singh was made on the basis of the doctrine set forth in A K Gopalan. This approach has since been discarded post the Maneka Gandhi judgment, which also overruled the Kharak Singh judgment and adopted the minority / dissenting judgment in Kharak Singh.

The Chief Justice of India also intervened, stating that it was unnecessary to further argue the merits of this issue if it needs to be decided by a larger bench, and that it was not necessary for the entire matter (i.e. the entire petition) to be argued before a larger bench. He suggested that the limited question being discussed before the court may be argued before a larger 9 judge constitution bench immediately. He also suggested that once the decision of the 9 judge bench is available, the matter could go back to the original bench that was hearing the petition.

At this stage the counsels for the petitioners observed that several questions relating the existence of a fundamental right to privacy were of constitutional importance, and must be discussed. The counsels stated that several developments have occurred in jurisprudence since the judgments in Kharak Singh and M P Sharma were written, both in India and internationally, and noted that a full discussion needs to be had on the nature of this right. The Chief Justice agreed, and stated that this larger question will be referred to the 9 judge bench. The counsels for the petitioners also argued that subsequent to the decision of the 9 judge bench, the full petition should also be heard before a 5 judge constitution bench, given the importance of the matter.

The order of the Court states as follows: “During the course of the hearing today, it seems that it has become essential for us to determine whether there is any fundamental right of privacy under the Indian Constitution. The determination of this question would essentially entail whether the decision recorded by this Court in M.P. Sharma and Ors. vs. Satish Chandra, District Magistrate, Delhi and Ors. – 1950 SCR 1077 by an eight-Judge Constitution Bench, and also, in Kharak Singh vs. The State of U.P. and Ors. – 1962 (1) SCR 332 by a six-Judge Constitution Bench, that there is no such fundamental right, is the correct expression of the constitutional position. Before dealing with the matter any further, we are of the view that the issue noticed hereinabove deserves to be placed before the nine-Judge Constitution Bench….

The order does not specify whether the petitions will be placed before the original bench or a 5 judge bench once the 9 judge bench has made its decision.

It has been argued that without the right to privacy, our other rights will not stand for much. The decision of the 9 judge bench will be of importance in determining the validity of the Government’s Aadhaar project. It will also be of equal importance in determining the rights of India’s citizens in a world which affords increasing value to the collection and use of personal information (often indiscriminately), whether for public or private purposes.

Linking PAN with Aadhaar – Update from the Supreme Court Hearing (Day – III)

In the on-going case challenging the constitutionality of Section 139AA of the Income Tax Act (‘IT Act’), the petitioners concluded their arguments today. Our coverage of the arguments made over the last two days can be found here and here.

Today, the petitioners’ counsel elaborated on the concept of informational self-determination, as propounded by the German Federal Constitutional Court in the landmark Census decision of 1983.[1] Relying on three scholarly pieces[2], he explained that informational self-determination stemmed from the fundamental rights of human dignity and personal liberty. Collectively, these two rights formed the constitutional right to personality under the German legal framework. Informational self-determination was therefore not just a necessary condition for the free development of one’s personality, but also an essential element of a democratic society. He argued that irrespective of whether this was a constitutional value under the Indian framework, it was a legitimate value and concern for the petitioners before the Court.

The petitioners, and others who object to the Aadhaar project must have the right to informational self-determination to not give their personal information to private entities empanelled by the Government. The counsel argued that UIDAI’s enrolment process was through a network of private entities and reiterated that more than 34,000 had been blacklisted for various reasons. This, in his view established the lack of control exercised by the government during the enrolment process. Further, he relied on UIDAI’s Handbook for Registrars[3] to show that even registrars (who may be state governments, or other public or private entities) are at liberty to retain biometrics and use them for other purposes. In his view, this represented a complete destruction of personal autonomy. He argued that the IT Act could not compel him to part with his biometrics under such circumstances.

The second main ground advanced by the petitioners’ counsel was ‘compelled speech’ as a violation of Article 19(1)(a). He distinguished giving demographic information to government authorities for a singular, defined purpose from information collection under Aadhaar. As per him, the state could not compel an individual to provide fingerprints and iris scans to private third parties. He cited Bijoe Emanuel v. State of Kerala (1986) 3 SCC 615 in support of this contention.

On proportionality, it was argued that the number of PAN cards for individuals (as per the Central Government’s figures) was 29 crore. When seen against the government’s figures for duplicates, this would only amount to 0.4% of all PANs. On the other hand, the intrusion caused by enrolling for Aadhaar would be tremendous.

The petitioner’s counsel reiterated his argument on the legislature lacking competence to enact Section 139AA. He stated that the doctrine of eminent domain was limited to land and could not be extended to one’s body, except under narrowly tailored circumstances under legitimate circumstances. Therefore, the legislature lacked competence under Entry 82 of List I or any residuary power to enact a statute compelling parting with such intimate information.

While summing up, he also reiterated the argument on voluntariness, relying on Lord Atkin’s dissent in Liversidge v. Anderson (1942 AC 206) to emphasise that voluntary could never be interpreted as mandatory.

Finally, he urged the Court to strike down Section 139AA of the IT Act, or alternatively, read down the mandatory nature of the provision to make it voluntary. He also suggested that if the bench thought issues such as informational self-determination and compelled speech are too intertwined or if it appeared not appropriate to decide this matter independently, they may be referred to a larger bench. However, considering the irreversible consequences created by the 1st July deadline, he pressed for interim relief to stay the application of the Act or restrain the government from taking coercive steps for non-compliance. He added that protecting against invalidating one’s PAN would also be essential.

A third petition, which was subsequently filed, was also argued in Court today. The counsel for this petitioner (Mr. Dashrathbhai Patel) contended that Section 139AA was a ‘confused, self-defeating and self-destructive’ provision. He pointed out that the Explanation to the section assigned meanings to several terms as per their definitions under the Aadhaar Act. In such a circumstance, borrowing the definition of ‘enrollemt’ from the Aadhaar Act (where it was a voluntary exercise), made it impermissible to make it mandatory under the IT Act. Secondly, it was contended that the definition of demographic information under the Aadhaar Act specifically prohibited collecting information related to income. By linking PAN with Aadhaar, Section 139AA was facilitating the convergence of income information, in direct contradiction with the Aadhaar Act. He argued that what was impermissible directly could not be permissible in an indirect manner.

With this, the petitioners concluded their arguments before the Supreme Court today. The Central Government will respond on 2nd May (Tuesday).

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Disclosure: The author assisted the petitioners’ (Maj. Gen. Vombatkere and Mr. Bezwada Wilson) lawyers for today’s arguments.

[1] BVerfGE 65, 1.

[2] Bernd R. Beier, Genetic Testing and the Right of Self- Determination: The Experience in the Federal Republic of Germany 16(3) Hofstra Law Review 601-614 (1988); and Susanne Baer, Dignity, Liberty, Equality: A Fundamental Rights Triangle of Constitutionalism 59(4) University of Toronto Law Journal 417-468 (2009); Gerrit Hornung and Christoph Schnabel, Data protection in Germany I: The population census decision and the right to informational self-determination 25(1) Computer Law & Security Report 84–88 (December 2009).

[3] p. 16

Linking PAN with Aadhaar – Update from the Supreme Court Hearing (Day – II)

The petitioners resumed their arguments in the case challenging the constitutionality of Section 139AA of the Income Tax Act (‘IT Act’). This provision mandates individuals to link their Permanent Account Numbers (PAN) with their Aadhaar number. The background to the case and our report from yesterday’s hearing can be found here.

The counsel for Maj. Gen. Vombatkere and Mr. Bezwada Wilson continued his arguments today. Today’s hearing commenced with pointing out that despite the government’s assurances, the Aadhaar framework was extremely porous and ineffective. That 34,000 enrolment agencies have been blacklisted was pointed out to substantiate this claim. It was also pointed out that biometric technology itself is fallible – instances of a hacker successfully copying the German Defence Minister’s fingerprints and Angela Merkel’s iris scans were also pointed out. Further, replies to RTI queries showed that more than eighty-five lakh Aadhaar numbers had been de-activated due to biometric and demographic errors discovered later. The counsel also apprised the bench of Aadhaar numbers being issued to dogs, trees, chairs and ‘Coriander s/o pulao’. Pertinently, he outlined concerns about Aadhaar data being leaked by several state and central government portals. These facts were brought to the Court’s attention to emphasise that the petitioners were conscientious objectors to the Aadhaar project and had serious apprehensions regarding its robustness, among other issues.

With the court’s permission, the counsel then revisited the Supreme Court’s interim orders in the main challenge to Aadhaar. He pointed out that due to the reference order, and the difficulties associated with forming a large bench, the case had essentially been ‘canned’ or ‘put in deep freeze’. However, he emphasised that at each stage, judges had been conscious of the gravity of issues involved and had consequently protected citizens with strong interim orders. This was done to protect individuals’ interest and prevent a situation of fait accompli. Particularly with respect to the order passed on 15 October 2015, it was pointed out that the Central Board of Direct Taxes was also a party before the Court in that interim order.

The counsel highlighted the graveness of the issues involved. If allowed, Aadhaar was likely to fundamentally alter the relationship between the citizen and the state and put every citizen on an ‘electronic leash’, enabling real-time surveillance. The Attorney General objected to this line of argument, contending that issues of privacy must not be raised in this case, in light of the pending reference.

On the issue of Section 139AA specifically, it was prayed that the provision must either be struck down or read down to make it voluntary. The submission was that the scheme of the Aadhaar Act was purely voluntary – it created a right to enrol for Aadhaar, but imposed no duty to do so. Reading sections 3 and 7 of the Act, he argued that in addition to being purely voluntary, the only detriment could be the denial of a benefit or service. Since paying tax was neither, one could not be compelled to part with their biometrics. He also argued that the Act and the enrolment process contemplated free and informed consent. When viewed in this light, the mandatory nature of Section 139AA was in direct collision with the scheme of the Aadhaar Act. Justice Bhushan interjected pointing out that the scheme of both statutes was different, and that made the legislation under challenge permissible. To this, it was submitted that a voluntary scheme could not be grafted onto the IT Act as a mandatory provision.

To support this contention further, it was contended that converting a right into a duty amounted to a colourable exercise of legislative power. Further, being coerced to enrol for a scheme that is essentially voluntary negates consent, rendering the legislation unworkable.

The petitioners’ counsel then apprised the Court regarding the penal consequences that would arise in the event of non-compliance with Section 139AA. These included higher Tax Deducted at Source (TDS), a penalty for failure to furnish income and a fine of Rs. 10,000 for not possessing a PAN card. Further, disabilities associated with not having a PAN under Section 114B were reiterated. On being queried by the bench whether PAN being mandated was the same as any other alternative (such as Aadhaar), it was argued that Aadhaar was intrusive to an unprecedented level. PAN, on the other hand, was not intrusive to one’s body. Routine transactions such as opening a bank account or purchasing a motor vehicle should not me made contingent on parting with biometrics.

The bench also quizzed the petitioners on the issue of giving up biometrics for passports and other similar circumstances. The counsel responded distinguishing such circumstances, arguing that in certain limited situations, such identification might be legitimate and necessary. This would be different from Aadhaar, where biometric authentication would become ubiquitous. Other circumstances would include identifying prisoners. Additionally, such information would be stored locally and only used for a limited purpose.

It was also argued that under Section 30, the Aadhaar Act itself defined biometrics as sensitive ‘personal’ data or information. Reference was also made to Section 43A of the Information Technology Act to emphasise that ‘personal’ information is of, and belongs to a person. Being intimate parts of the body, biometrics could not be considered a dominion of the state. Reliance was also placed on On Jurisprudence by Salmond and the Oxford Handbook on Jurisprudence and Philosophy of Law to highlight that the right of bodily integrity included ‘exclusive possession and use of his or her own body as against everyone else’. The petitioner’s counsel went on the state that the Indian Constitution does not establish a totalitarian state but creates a state that is respectful of individual liberty and freedoms. Drawing from the preamble and emphasizing on the idea of a limited government, he said that the Indian Constitution is ‘not a charter of servitude’.

The petitioner’s counsel took the Court through a host of judgments for the proposition that the right to life extended to a right to protect one’s body and identity from harm. He cited landmark judgments such as National Legal Service Authority v. Union of India and Others (2014) 5 SCC 438 and Sunil Batra v. Delhi Administration and Others (1978) 4 SCC 494 to emphasise that personal liberty went beyond mere animal existence. He also touched on the context of bodily integrity, informed consent and self-determination as essential facets of Article 21, read with Articles 14 and 19.

As a final argument, it was argued that the object of the statute itself was discriminatory. Section 139AA discriminates between a homogenous class of assessees – individuals willing to part with biometrics to enrol for Aadhaar and those who’re unwilling to do so. The provision unreasonably discriminates against the latter by subjecting them to grave penal consequences, given that both categories are willing tax payers. A voluntary scheme could not, and should not deprive individuals of their choice.

The petitioners’ counsel also briefly touched upon the concept of ‘informational self-determination’ and argued that the state did not have any imminent domain regarding one’s body. Parting of sensitive features such as biometrics should be subject to one’s control and consent.

Arguments on behalf of the petitioners are likely to be concluded tomorrow. The Attorney General, representing the Central Government, is likely to advance arguments on Tuesday (May 2).

Aadhaar – Identity without Consent, Control or Security

The Central Government notified certain sections of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (‘the Act’) last month. As of now, only the sections setting out the establishment, powers and functions of the Unique Identification Authority of India (UIDAI) have been brought into force.

Passed earlier this year, the Act is aimed at more efficient delivery of government subsidies and services by eliminating ghost identities and reducing corruption. It does so by obtaining and storing, in a centralized database, biometric and demographic information of all Indians who have been residing in India for more than one hundred and eighty-two days. This database, called the Central Identities Data Repository (CIDR), not only stores information parted with at the time of enrolment, but also keeps a record of every identification request sent to it. Thus, every time a resident is required to authenticate her identity by any service provider, the CIDR would maintain a record of it.  Significantly, (and contrary to three previous Supreme Court orders), there is little room for doubt that the scheme has been envisaged as being mandatory to avail the benefits attached to it.

If the lack of an overarching privacy law wasn’t enough reason to worry, the government’s submission before the Supreme Court that there is no fundamental right to privacy has raised legitimate concerns about the project and its implementation. A lot has been written about the problems with the Act and the larger scheme itself. But two aspects of the privacy debate under Aadhaar deserve urgent attention. First, as a mandatory scheme with no option to opt-out at a later stage, Aadhaar raises important issues of consent and one’s right to control the use of their personal information. This has famously been articulated as ‘informational self-determination’ in several European jurisdictions. The second concern is procedural and pertains to the method of collection and storage of sensitive personal information.

No Power to Consent or Opt-out

Biometric information such as fingerprints and iris scans form a core part of one’s bodily integrity. A requirement to part with such information as a condition precedent to availing essential services undermines basic constitutional values. While the enrolment form has a checkbox to verify consent, this is merely illusory, as failure to consent would amount to automatic exclusion from a host of benefits and services. Despite the fact that the Act mandates ‘enrolling agencies’ (discussed later) to explain the purpose of collecting demographic and biometric information at the time of enrolment, there is no legal obligation to inform residents of the extent of information being held about them. Aggregation of information within the CIDR as a result of a series of authentication requests over a long duration of time comes perilously close to creating a complete personality profile of every resident. This makes the state privy to a wide range of activities from buying an LPG cylinder to enrolling in a school, thereby drastically altering the individual-state power dynamic.

The Act further dilutes individual agency by creating statutory exceptions to how personal information can be used. Section thirty-three of the Act allows disclosure of personal information if a court (a District Judge or above) deems fit or if it is in the interest of “national security”. Both these caveats are problematic. To illustrate the first, in 2014, the CBI approached the Bombay High Court asking the UIDAI to run a fingerprint match on its database in order to enable it to identify culprits in a criminal investigation. Before the Court, the UIDAI had argued against sharing its data owing to privacy concerns. However, the Court felt differently. The Bombay High Court directed the Central Forensic and Scientific Laboratory to appoint an expert to determine if the Aadhaar database was technologically capable of matching fingerprints. This order has been stayed by the Supreme Court but the case is yet to be disposed off. The information shared with UIDAI was never envisaged to be used in criminal investigations. However, the Act explicitly allows information to be shared if a court allows it. As per UIDAI’s own statement, the system has a False Positive Identification Rate of 0.057 per cent. When applied to all residents within the country, a fingerprint search would have the effect of putting lakhs of residents under scrutiny.

Secondly, not only has the phrase “national security” not been defined in the Act (or in any other legal text for that matter), it would be the Executive’s sole prerogative to determine whether a situation qualifies for the exception. In both these situations, the individual whose information is actually at stake need not be consulted before her information is disclosed. These two exceptions are couched so broadly, that it is almost farcical to say that personal information will be used only for the authentication of one’s identity.

The Act contains broad exceptions to how personal information can be used and does not provide for any mechanism to opt-out or have one’s data deleted from the CIDR. In doing this, it diminishes one’s agency to consent, revoke consent and control how this information can be used. A society where individuals are unable to anticipate and predict the amount of information held about them and how it may be used is likely to have a chilling impact on democratic participation.

Dubious Collection and Storage of Personal Information

The issue of consent aside, organizational mechanisms in place to collect and store personal information of over a billion residents also give rise to multiple concerns. Prior to the passing of the Act, the UIDAI had outsourced the process for enrolment to various private entities which possessed the requisite know-how. Sensitive personal information such as biometrics has thus been captured, stored and retained by private companies using their own technology and without any oversight by government officials. In 2014, news reports of ‘Lord Hanuman’ having an Aadhaar card surfaced. Vijay Madan, the then Director General of the UIDAI later explained in a statement that this was ‘not a security issue’ but an instance of ‘malpractice’. The agency was then reportedly removed from the UIDAI panel. The Act has not only given legislative sanction to the practice of private companies collecting personal information, but also does not present the affected individual with any recourse in case of a breach.

Once the data is transferred to the UIDAI, it is maintained by it in the form of the CIDR. The perils of centralized storage of personal information have long been acknowledged. Any unauthorized security breach could jeopardize the information of all residents at once. This is vastly different from a smart-card system or Apple’s Touch ID, which stores biometric information locally on the device. Under European data protection jurisprudence, storage is an important element to ascertain whether the means used are proportionate to the aim sought to be achieved by the law. If the purpose of the system is only to authenticate identity in order to plug leakages in the distribution system, the need for centralized storage must be questioned.

Aadhaar has the potential to irreversibly alter the relationship between the government and people. As the world’s second most populous country, the desire to make the distribution system more efficient is an important goal to strive for. But in this case, the trade-off between privacy and efficiency is not only undesirable but also unnecessary. Finally, the manner in which the Act was passed and the government’s submissions before the Supreme Court display a lack of good faith that only add to the already long list of concerns associated with the project.

 

CCG analyses on the Criminal Defamation ruling

Written by Nakul Nayak

Since the Supreme Court’s May 13th ruling on the constitutionality of criminal defamation laws in India, CCG has come out with two op-eds on the shortcomings of the judgment.

  1. In today’s Indian Express, Chinmayi Arun (Executive Director of CCG) raises important questions surrounding the implications of the judgment. Specifically, Chinmayi points out the glaring dissonance in the Central Government arguing for a right to reputation in the domain of defamation and simultaneously arguing against the fundamental right to privacy in the Aadhar hearings. Chinmayi also goes on to criticise the Supreme Court’s inadequate recognition of the powerful parties that use criminal defamation laws and their disparate impact on ordinary citizens. Her op-ed can be found here.
  2. A few days back, I wrote an opinion piece in Livemint arguing that criminal defamation laws can and have been used by state officials to obfuscate public inquiry. This affects the truth-seeking endeavour of free speech, apart from the fact that India necessitates a “public good” value to truthful statements to qualify as a defence. I also argue that section 199 of the CrPC, which enlists the procedure to be followed in any criminal defamation prosecution, envisages an additional avenue for silencing criticism of official conduct by allowing a public prosecutor to file a complaint even when the particular state servant may not have felt aggrieved. My op-ed can be found here.
  3. Post Script [May 27, 2016]: Anna Liz Thomas, a student at NALSAR University and an intern with CCG, has written an interesting piece analysing the arguments of the petitioners that were never countered or even addressed by the Supreme Court. Anna proceeds with look at the effect of these arguments and this, apart from making for a compelling read, makes one wonder whether the rebuttal of these arguments would have made the judgment a more informed and nuanced one. Anna’s post can be found here.

The Dirty Picture Project: Dil Dhadakne Do- A welcome foray into feminism.

By Bhargavi Vadeyar, as part of the Dirty Picture Project

Dil Dhadakne Do is the story of the Mehras, a dysfunctional, Delhi high society Punjabi family, the kind where the women talk in overly sugary tones and the men run businesses and play golf. The line-up includes the narcissistic father, Kamal (Anil Kapoor); the socialite/housewife mother, Neelam (Shefali Shah); the prodigal son and heir, Kabir (Ranveer Singh); and the quietly extraordinary daughter, Ayesha (Priyanka Chopra).

The cast is rounded out by Ayesha’s sexist and controlling husband, Manav (Rahul Bose); Farah (Anushka Sharma), Kabir’s love interest and a dancer on the ship, and Sunny (Farhan Akhtar), Ayesha’s one-time best friend and love interest. Last, but certainly not least, Aamir Khan voices the Mehras’ dog, Pluto, who narrates the film and comments on the hypocrisy of Indian families.

The movie’s premise is the Mediterranean cruise to celebrate the 30th wedding anniversary of Kamal and Neelam Mehra. Shenanigans predictably follow as many of the Mehras’ family and friends are forced together for a two-week period.

Bechdel Testing

The movie just about passes the Bechdel Test with a fleeting conversation between Ayesha and her cousins Divya and Putlu about what Divya wants to do with her life, now that she has graduated from college.

This is one of those cases, however, where the Bechdel Test doesn’t paint a true picture. The movie is filled to bursting with subversive one-liners and feminist characters that are completely out of the ordinary for a mainstream Bollywood film. It would be very difficult to talk about every insight the movie provided into the gender roles of the Indian upper class family, so I’ve chosen to focus only on the key elements.

Ayesha, the Superwoman

Ayesha is far and away the most interesting of the Mehras. For a Bollywood heroine, her clothing is not overly sexualised, and she is a well-developed female character. Ayesha is a successful businesswoman who sold her jewellery to start a travel company that landed her in the Forbes top 10 entrepreneurs list (just roll with it, this is Bollywood). However, she has to endure a controlling husband who “allows” her to run her business, along with barbs from her mother-in-law about talking business at the dinner table and never being at home.

She is a self-made businesswoman, but everyone around her just wants her to have a baby, including her husband and her parents. When told about her appearance in Forbes, her father only replies that next year his son’s name will be featured, and later announces in front of the entire gathering that his only wish is for her to give him a grandson (but not a granddaughter, of course). The gender bias is clear: her father, also a self-made businessman, shouts his achievements from the rooftops but is unwilling to acknowledge his daughter’s.

Ayesha, though, is secretly taking the monthly birth control pill. She is deeply unhappy in her marriage and already contemplating a divorce when the return of Sunny finally galvanises her into action. It becomes clear that Sunny and Ayesha were in love before her parents separated them.

The only flaw in the otherwise excellently written Ayesha is that she is unwilling to ruffle her parents’ feathers, often at the cost of her own happiness. She also seems to need Sunny’s appreciation of her achievements in order to be able to value herself enough to finally ask Manav for a divorce. This is slightly irking, but I’ll let it slide because Ayesha’s overall story ark is the best thing about this movie.

Sunny, the “Journalist-Activist Type”

Sunny is possibly the first openly feminist male character in Bollywood, and the film somewhat puts him on a pedestal for it. One of the best moments of the film is a conversation between Sunny and Manav, where Manav lets it slip that he “allows” Ayesha to run her business. Sunny immediately picks up on this and tells him that by allowing her to run her business, he is assuming a position of authority and control, and that this is not equality. This proves his point, he says, that women have not yet achieved equality. The movie portrays Sunny as admirable and intelligent for his feminist views, and Manav as controlling and unwittingly sexist.

Talaq, Talaq, Talaq

Once Ayesha admits she wants a divorce, both families sit together in order to work out what has gone wrong. The movie really highlights that everyone is against Ayesha here; she sits alone, facing her parents, Manav and her mother-in-law. They all treat Ayesha’s divorce as a something hurtful to them, echoed by Neelam asking Ayesha why she is doing this to them.

Both Neelam and Ayesha’s mother-in-law can’t seem to understand that she wants a divorce because she doesn’t love her husband. They both believe that as long a husband can provide a good standard of living and is not violent, there should be no problem, something that the film is quick to make fun of. This is especially ridiculous because, again, nobody seems to notice or care that Ayesha is financially independent.

Here the film also draws a stark contrast between the generations. Ayesha, who is financially independent, can divorce her husband. Neelam, on the other hand, has been forced to pretend that she is unaware of Kamal’s affairs for years because she has nowhere else to go.

Of Sons and Daughters

The movie also highlights the differences between the treatment meted out to sons and daughters. Once Ayesha is married, her birth family effectively disowns her to the point where her name is not mentioned on the cruise invitation cards, even though she planned the whole trip. Kamal also repeatedly insists that her home is now with her husband’s family.

Kabir, on the other hand, is being pressurised into succeeding his father as CEO of their flailing company, Ayka. This is despite the fact that it is clear he has very little interest or aptitude for business, while Ayesha runs her own business successfully. After Kabir refuses to run the company, Neelam asks what they will do with the company if he doesn’t run it. They don’t even consider the possibility of Ayesha being her father’s heir until Kabir points it out to them.

The Pilot and the Dancer

Kabir is the youngest member of the Mehra family. Overall, his character is also rather feminist, as he is unwavering in his support of his sister and is one of the few who acknowledge her success. Kabir falls in love with Farah Ali, who appears to be a very strong character until you scratch the surface. She is a dancer on the ship who ran away from home because all her parents wanted for her was to become someone’s housewife. Her story and her advice inspire Kabir to follow his heart and refuse to give in to his parents’ pressurising about his career.

Farah’s character is the where the film trips up slightly; it isn’t very well developed, which definitely puts her on the Manic Pixie Dream Girl scale. A Manic Pixie Dream Girl is a character that enters the (always male) hero’s life to change it for the better without ever changing herself, a role that Farah fulfils here. However, every character who is not a Mehra is similarly underdeveloped, so this film doesn’t seem to make a gender-based distinction on that front.

In Conclusion

Dil Dhadakne Do’s feminism is probably down to the fact that the two screenplay writers are both female: Zoya Akhtar and Reema Kagti. The film is certainly a step forward for Bollywood, and I can personally assure you that the film’s social commentary even improves on repeat viewings, a rare feat for any Bollywood movie. Dil Dhadkane Do is definitely worth a watch, for its rare nod to feminism and for the catchy songs that I’m sure I will be humming for several days.

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For more information on the Dirty Picture Project, contact Aarti at aarti.bhavana@nludelhi.ac.in

Aadhaar (the Larger Bench): Day I

Written By Joshita Pai

The 5 judge bench this afternoon commenced with the Aadhaar hearing after reference from the Supreme Court on the issues of existence of privacy as a constitutional right and on clarifications of the interim order issued on 11th of August. The bench seemed determined to focus on the clarification issue and the as the beginning of the proceedings, the CJI stated with particular regard to the privacy issue that he has not concluded what bench can be constituted to determine the question.

Mr. Shyam Divan, Senior Advocate insisted on delivering preliminary findings concerning privacy and in the latter part of the hearing, he introduced the subject again and threw considerable light on the previous orders issued by the Court in the matter. The Attorney General’s arguments primarily were based on firstly, the authentic nature of Aadhaar cards; secondly, on the non-viability of procurement of other identity cards such as PAN cards and driving license by the poorest of the poor, thirdly, that 92 crores of the population has already enrolled for Aadhar; fourthly, that the Aadhaar project is centred around a social welfare scheme, finally, on the premise that the card does not contain the biometric information and only displays the unique identification number.

Referring to the Big Brother concerns, the AG asserted that communication on WhatsApp can be snooped into by Facebook. Whatsapp however, in the light of the recent encryption debacle had assured that the encryption keys loaded at the time of sending a message by a particular user can be read in readable format only by the targeted receiver. Certainly, doubts galore the credibility of such end to end encryption. Moreover, commercial use of data is a tangential concept to surveillance and maintenance of database by the Government.

Delving upon the 92 crores Aadhar card holders, the bench asked the AG if he ruled out the possibility that these many people volunteered for aadhar since that would be their only means to access the proposed schemes. The Court, referring to the interim orders sought clarification w.r.t. the voluntary nature of Aadhaar post those orders. The advocates for the string of defendants reinstated that for all schemes outside PDS and LPG, it has been voluntary and insisted that they wish to resume schemes since they are attached to Aadhar.

Arguing for the petitioners, Mr. Shyam Divan reintroduced privacy concerns and stressed upon how the issue can not be looked into in isolation since the basis for Aadhar is built on collection of biometric information and fingerprinting which has been conducted in the absence of any statutory backing or in the least, issuance of a circular. He also mentioned that the enrollment form does not contain the requirement of supplying biometric data. He read out the interim order issued by the Court on August 11th and stated that there was no notice served to the petitioners from the Centre stating that its challenging the Court order.

The bench intermittently expressed concerns about how the order would be carried out since post clarifications by the constitutional bench of the 11th August order, the same would be referred back to the 3 judge bench. The Court will begin by looking into the interim order issued by the court last week in the next hearing, which is scheduled for 2 pm tomorrow.