While delivering a lecture at the NALSAR University of Law, human rights advocate and constitutional lawyer Dr. Menaka Guruswamy asserted that the Supreme Court has had an "inconsistent jurisprudential position" when it came to questions of individual autonomy.
Delivering a lecture titled ‘Crafting Methods and Contemporary Lessons: Constitutionalism Alive’, Ms. Guruswamy began by looking at the historical context of the drafting of India’s Constitution, and the nationalist movement in the 1930s and 40s, when the contours of our citizenship and the social fabric of our country were envisaged.
She then discussed and contrasted the debates and crafting methods within the Indian and Pakistani Constituent Assemblies on issues such as choice of official language, minority rights and national identity. These contrasting crafting methods, she said, have lessons for the politics of contemporary India.
Dr. Guruswamy also made references to Dr. Ambedkar’s speech in the Constituent Assembly, calling for setting aside of slogans and words that stoke fear amongst people, and to make concessions in the varied demands of the representatives of varied peoples, for the question of constitutional drafting was too big and there was too much at stake to suspend negotiations.
Constitutionalism, she said, deals with questions of legitimacy that are strategic to understanding politics in the present day. She cautioned that at critical junctures like in the present, where there is a culture of lynching and mob violence against minorities for differences in practices and beliefs, we must remember that such moments have occurred in the past as well. She opined that the only way to overcome these cycles of violence is to refrain from stoking communal fires, and respond strategically.
Thereafter, she pointed out that the same Court which brought about the Right to education and waged a war against extra-judicial encounters has come out "weak" when it came to questions of gender and sexuality.
She referred to the upholding of the Constitutional validity of Section 377 of the Indian Penal Code, and opined, "When it comes to cases on individual sexuality of Indian citizens, the Court not only came out on the wrong side of the history in Naz Foundation but really in an egregious display of a lack of imagination of both, the Constitutional values as well as the basis of a founding and understanding of each individual citizen."
She further referred to the ongoing case in the Supreme Court concerning 24-year old Hadiya’s conversion to Islam, and her subsequent marriage to a Muslim man Shafin Jahan. Elaborating on the High Court and the Supreme Court's stand taken in the case so far, she argued that it is in epochal situations like this that the Court must reflect on its own constitutional history and values.
Dr. Guruswamy is an alumnus of the National Law School of India University, Bangalore, and Oxford University. She is the first Indian woman Rhodes scholar to have her portrait put up at Rhodes House, Oxford, and is currently practising at the Supreme Court of India.