Karuna Nundy: India Has a Strong Constitution, but Its Democracy Is Weakening

This interview with Karuna Nundy is part of the Asia program’s Women's Voices From the Indo-Pacific Project, produced by Senior Fellow Manjari Chatterjee Miller and Research Associate Zoe Jordan, featuring influential women in India’s political, economic, technological, and social fields whose work matters for the U.S.-India bilateral relationship and India’s relationship with the world. 

Karuna Nundy (@karunanundy) is an Advocate at the Supreme Court of India, and an international lawyer who has advised governments and organizations on human rights, and constitutional and legal reform. She currently serves on the Columbia University Global Free Speech Experts' Committee, and the High Level Panel of Legal Experts on Media Freedom founded by the former Chief Justice of England Lord Neuberger, and Amal Clooney. Qualified to practice law both in India and New York, Ms. Nundy holds degrees from the University of Delhi, University of Cambridge and Columbia University.

Ms. Nundy, who has been described as one of India’s leading lawyers and feminists, has litigated a number of constitutional cases on behalf of marginalized groups.

What do audiences in the United States commonly misunderstand about the judiciary system and constitutional and human rights law in India? 

India has a very strong and progressive constitution. Post-independence^[1] India adopted universal suffrage and guarantees of rights very quickly and far earlier than other countries in similar positions. The Indian constitution protects individual and group rights, a concept that may be difficult for an American familiar with the sole focus on the individual. It also allows intervention in economic and social rights, not just civil and political rights. For example, the Indian Supreme Court interprets Article 21 -the right to life quite broadly. It is not just the right to not be killed or not be arrested without due process but the right to food, and even clean air – elements of a good life.

The Indian Supreme Court has one of the widest jurisdictions in the world. It can hear a petition from any order in any court if the judges believe a significant injustice has occurred. Any Indian citizen can file a public interest litigation in the Supreme Court. Of course rights being interpreted this expansively has also led to criticism. So the Court is now attempting to be quite careful about which bits of rights to make justiciable, and which bits to defer as a policy issue under the purview of the government. Some of the judgements produced by our courts systems are of very high quality, but some of them need strengthening. The court system is slow and very much a work in progress.

What are the most consequential factors in your field of constitutional and human rights law, and democratic institutions that will play a role in India’s relationship with the United States or world in the next 3-5 years?

Elections every five years and universal suffrage does not make a democracy. While we are a democracy still, there has been an erosion of democratic values over time. The Right to Information Act is an example. It gave Indian citizens the tools to have a continuing dialectic with the government – so a government is elected based on campaigns and promised policies, and then, ideally, the electorate has the right to talk about how the government is performing in office and give it feedback which in turn transforms governance. This continuous feedback loop is vital in a democracy. But the fact is the Right to Information Act has been diluted and limited by successive governments in India. And that is a problem.  We don’t for instance know any more which companies –  owned by Indians or foreigners – have bought Electoral Bonds^[2] in India’s ruling parties. This can lead to post-electoral political parties becoming beholden to unknown companies in a quid pro quo. There has also been a massive chilling effect on free speech, cutting off the link between government and citizens.

The United States has a consistent bipartisan focus on the status and rights of Christians and international non-governmental organizations operating in India. The shift in the United States to a Democratic administration with a Vice-President who is of Indian origin has also, I think, widened America’s engagement with India on human rights.

What inspired you to pursue your career path? How does your personal background inform your work?

Litigation is like surgery - win or lose there is always an impact. I was driven to law by my desire to marry the intellectual and the performative, and create the tools to make the world better for the worst-off. My father was at Harvard University, my mother on her way to an academic career at the London School of Economics and they decided to return to India to put their privilege to good use and serve the most disadvantaged. They had very little money and they were happy.  Happiness is persuasive.

Can you speak to the status of women in the work that you do?

The greatest change I have seen in my lifetime is in women’s entitlement to voice, bodies, space and power. There are allies within the gates. In 2013, I was part of a group of people who were able to bring in new anti-rape laws that expanded the definition of sexual assault to reflect how women actually experience it, and make the process of engaging with a rape complaint more survivor-centered. We won one of the first convictions for digital rape under the new law. This is big progress. But we couldn’t get rid of the exception under the 2013 anti-rape law that says it is not rape if the perpetrator is the woman’s husband. So we also failed collectively as a society in allowing for this. Now I am leading a case before the Delhi High Court to get rid of this exception as unconstitutional, and criminalize marital rape. The courts are also hearing cases on legalizing gay marriage. But the appeals process is long. The hetero-patriarchy is very sticky, and keeps rolling progress back. We will need quantum leaps in gender and queer rights to counter it. But there is hopeful change. 

When you look at the state of human rights, democracy, and constitutional law what concerns you most or brings you hope? What are the most pressing priorities for you and your colleagues?

In India, the constitutional courts’ bandwidth, in terms of both jurisdiction and time, is very limited. We also have very few constitutional judges and lawyers to match the frequency of central  and state governmental decisions and laws. The appointments of judges also need to be more diverse and robust to shield them from governmental pressures.  However, there are many islands of hope in our judiciary – judges who uphold the Constitution without fear or favor, court processes and police who treat a victim of sexual assault with gentleness and respect.

We have had some excellent decisions recently. The landmark K.S. Puttaswamy judgment in 2017 on privacy is one. In this judgement the Supreme Court cited the American legal feminist Catherine Mackinnon in protecting the right to privacy of all individuals as an intrinsic part of the right to life and liberty, which included, they stated, protecting all aspects of their personal identity such as  gender and sexual orientation.