Supreme Court lawyer Karuna Nundy on her work on women's issues, the Justice JS Verma committee report, and the Criminal Law (Amendment) Bill, 2013
My freedom, and yours, are bound to each other and to those around us. I was looking for a vocation that takes that large truth into account, one that fit me, so a lot of due diligence had to be done first," says Karuna Nundy, a Supreme Court advocate, of her journey to law.
Her first degree, in economics at St Stephen’s College, New Delhi, didn’t inspire. “Delhi University set us a limited, neoclassical syllabus," Nundy says, “without enough relevance or accuracy in the real world."
After a short stint as a TV journalist, she applied to law, film and journalism schools and chose to study the first at Cambridge University, UK. “Law school was a homecoming," she says. “Law negotiates all sorts of relationships of power, money and coercion—between individuals, between people and companies, companies and companies, and between people and governments. It deals with fairness, independence and inter-dependence quite concretely."
Nundy followed up her law degree with a fellowship at Columbia University, New York, US. She then qualified as a New York lawyer, worked at international tribunals and with the United Nations, before returning to India more than a decade ago.
Since then, she has been involved in major commercial and human rights litigation and legal policy, including justice for the victims of the 1984 Bhopal gas tragedy. She has contributed to the discourse on gender justice in India, not least by helping to frame inputs for the new anti-rape laws after the gang rape and death of a 23-year-old girl in Delhi last December. In this interview, Nundy speaks about her continuing engagement with law and democracy. Edited excerpts:
Is there a Bill of rights for women?
We have a good Constitution, a great Constitution even. This January we had the (Justice J.S.) Verma Committee—a state-sanctioned committee, of a former chief justice of the Supreme Court, chief justice of a high court, and an eminent jurist—consult more than 80,000 recommendations and testimonies. They’ve reclaimed constitutional equality for women in the report and more specifically in the Bill of rights (www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf). Every Indian woman and man needs to come back to that Bill of rights when in doubt as to what to ask of the state, of employers, where to draw boundaries between the self and others.
Our Supreme Court has made it clear that the right to life means the right to a good life, with basic standards. So the right to life, security and bodily integrity under the Bill of rights includes freedom from all violence and exploitation in public or private, but also the “right to be respected as an independent person and to the free development of personality". It is the “right to express and experience complete sexual autonomy".
The right to equality and non-discrimination includes non-discrimination by private actors. This is important because it bars discrimination in employment. It also bars actions by anyone—family member or otherwise—that prevents women from inheriting family property, and “systematic inequality in access to opportunities" by women as a result of a gender-based division of labour.
Can you tell us about some of the major legal work you have been engaged with, and the challenges?
Constitutional cases can be hard and the failures teach you a lot as well. One of my early cases involved women from one of the paramilitary forces, who wanted a class-action suit on sexual harassment filed against their employers. The lead petitioner was a hero of sorts who had won awards for bravery and skill. We worked hard on it, and the case was admitted, but then she withdrew because of retaliation within the institution and violence in her marriage. That was an eye-opener.
There have been victories as well. We won the case to shut down cancer-causing water outlets for victims of the toxic-waste dump around the Union Carbide factory site in Bhopal. In a separate case, the Supreme Court gave us a comprehensive judgement on better healthcare systems for survivors of the Bhopal gas leak. I have cases on free speech, disability rights and gender that are now before the court.
I also represent companies, and have been involved in some landmark contractual, property, tax and corporate governance dispute resolution for Dabur Ayurvet Ltd, Texas Instruments Ltd, Airbus SAS, and other corporates. It’s a mistake to think that the accountability required of Union Carbide and Dow Chemicals is anti-corporate. Most corporate managers I meet believe that limiting rogue corporate behaviour and efficient and fair rule of law is in the interest of most companies, as well as those who work for them in their individual capacity.
My international experience includes commercial arbitrations and bilateral investment treaty work as well as constitutional work. I helped draft parts of the interim constitution of Nepal, where we specifically included women’s and children’s rights, conducted workshops with the senate of Pakistan on legislating constitutional rights, and worked with the government of Bhutan on compliance with international treaties.
On the recent Criminal Law (Amendment) Bill, 2013, we represented various human rights and women’s rights groups before government and parliamentarians. Together we were able to get some important amendments into the Bill, like not needing government sanction to prosecute police and other public officials for sexual assault or dereliction of duty. But look at what stayed out: “Outraging the modesty of a woman" remains an acceptable standard under the criminal law. How do you interpret modesty? Why should modesty be a prerequisite for the criminal law to kick in where somebody’s bodily integrity or dignity is being violated? That’s a question that perhaps could be answered in 1860, but not now, because even patriarchal standards have changed.
Do you think there is enough gender justice in the Constitution?
Our Constitution was framed predominantly by upper-caste, upper-class men, but the main architect of that Constitution—brilliant Dr B.R. Ambedkar—was in many ways a man who understood gender justice, and had a good handle on substantive and formal equality. So we have Article 14 which speaks about equality of all people before law, but there is also Article 15, which recognizes that the playing field is not level and says that nothing will come in the way of making special provisions for women and children.
India also got voting equality—one vote for each adult citizen regardless of gender or other characteristic—at an earlier stage of economic development than other countries. If we had more women, and gender-just people on that assembly—or even now in Parliament—the constitution would reflect women’s interests more specifically. But the Constitution as it stands is more than good enough to realize the Bill of rights we just spoke of.
Do you see any inherent weakness in the Constitution?
Well, one issue is that of the first amendment to our Constitution in 1951. In the US, the first amendment refers to the right to free speech. In our case, it restricts the right to free speech, and is used as cover for a lot of laws that send people to the criminal justice system and to jail for saying the wrong thing. Article 19(2) allows restriction of speech if it affects friendly relations with foreign states, public order, and decency or morality. Some of these terms are way too broad. Who decides what “morality" will apply and why should my morality apply to you and yours to me?
Yet, in spite of our laws, our media critiques and questions, unlike, say, much of the mainstream media in the US, where there is often a consensus of vapidity or silence on difficult issues. Here we have a whole slew of laws that restrict what you can say, which have only got worse with the amendments to the IT Act in 2008, and the rules of 2009 and 2011. If you say anything annoying and inconvenient on the Internet you can potentially go to jail for three years. But we have a rambunctious social and mainstream media because this and other speech laws are patchily enforced, though it cracks down with full force on political dissenters or those without mobs behind them.
Do you feel there is enough awareness of citizenship among the people?
If we’re talking about democratic rights, our citizens show up in large numbers to vote, more so than in many other countries. Democracy doesn’t happen once every five years though—it’s a continuing relationship between the governing and the governed. That relationship should be mutual, iterative, in which the governed indicate what is required and governance responds to that, changes itself and is reconstituted as the governed want it to.
The Right to Information Act, for instance, is something that makes this happen—so all these attempts to dilute it are problematic. It enables citizens to look at particular decisions of the government and see if they could have been more fair. It has sharpened litigation in so many ways—for instance, an aerotropolis company I was representing was able to show that the “decision" on the government notesheet was forged.
Though citizenship identity is growing, most people have little knowledge of their legal rights. Knowing what your rights are can, by itself, change your bargaining position vis-à-vis a husband, a company, the police or other government departments.
Freedom’s not just the ability to be free from violence or fetters, it’s also the agency to achieve basic economic and social well-being, and government has an important role to play. There are assembly and general elections coming up—we almost expect politicians to be criminal and corrupt now. MyNeta.info (run by a group that tracks political candidates) tells you if your candidate is a criminal, how much money they’ve declared and levels of education—though more information is needed. But if one took the trouble to look beyond the TV debates, at the long lists of people who bother to stand for election, one might well find a gem or two in enough lists. Add up those, and you and I could have a Parliament, a government we can believe in.