Back to the Future? Temporality and Society in Indian Constitutional Law: A Closer Look at Section 377 and Sabarimala Decisions and the Genealogy of Legal Reasoning

Abstract

‘On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality’. B. R. Ambedkar’s famous last speech to the Constituent Assembly on 25 November 1949 still resonates within contemporary Indian constitutional law, and even more so his following interrogation: ‘how long shall we continue to live this life of contradictions?’ Prima facie societal, the contradiction is however also a temporal one, Indian constitutional law being founded on both the British traditional idea of ‘continuum’ and the American inspired revolutionary principles of ‘pursuance’ of a novel legal and social order. Two recent Indian Supreme Court decisions pertaining to the de-criminalisation of same sex relations ( Navtej Singh Johar v. Union of India) and for the right of menstruating women to enter the Sabarimala Temple in Kerala ( Indian Young Lawyers Association v. Union of India) offer through their differing and sometimes dissenting opinions a glimpse at those temporal contradictions. Through an analysis of both decisions and in particular that of Chandrachud J. and Malhotra J.’s judgements, this article seeks to highlight two radically differing conceptions of temporality applied to constitutional issues, which can themselves be linked back to the transposition of the legal positivist discourse in India within the colonial era: on the one hand, an attempt to continue Common law’s empirical-based tradition and on the other hand, an (apparently) a-historical perception of Law drawn from neo-Roman civilian legal discourse and later normative positivism. If both branches of legal reasoning aim at protecting minorities’ rights, the value they inscribe to History within the realm of Law cannot be further apart.