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On Liberal Constitutionalism

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[dropcap]I[/dropcap] guess this is the biggest compensation for what I do –  the love and affection of students and the younger generation. All the distinguished guests, students and academicians present here.

There was a little contradiction in the presentation which was made about me. You started by saying, I am my own person. But then you went on to itemise my achievements. If you are your own person, you are your own person. What I would like to tell you is that I don’t have any achievements in court. What I have in court is a lot of fun; I totally enjoy my work in court. It does not sit like a burden on my shoulders. I never call myself an achiever, as you rightly said I call myself – my own person and as a person, I am the person who loves fun, and so I treat the legal system as an arena in which I can have fun and in the process of having fun, I define what is justice. That is my own.

 

The attack on Lawyers Collective

 

I was personally attacked by the Government of India in the year 2015. This attack came because my partner, Anand Grover, represented Yakub Memon in his plea against the death penalty. Twenty-five senior lawyers declined to represent Yakub Memon. We took the view that the right to legal representation is a fundamental right and it does not matter what is the offence that you are convicted for. You have the right to exhaust your legal remedies till your dying day.

I was told by insiders of the Ministry of Home Affairs that the day he (Anand Grover) appeared for Yakub Memon, it was the day when the decision to cancel our registration under the Foreign Contribution (Regulation) Act, 2010 was taken.

Now, this is a kind of legal system that we live in. At that time, we i.e. the Lawyers Collective had to take a decision whether we challenge this decision or not. Of course, we took a decision that we do not want foreign funding and there will be no need to challenge it on the ground that we want to continue to get foreign funding, but we will not tolerate the atrocity by Government of India and the attempt to defame us after over 50 years of contribution to justice in this country. Then we decided to challenge the decision and those petitions are still pending in the High Court of Bombay.

I can only tell you from that day onwards, the Lawyers Collective become a much stronger organisation than it was before that day. As the person who introduced me told you mentioned,  earlier we were publishing a print edition of the magazine called Lawyers Magazine. That magazine was meant for law students and was read largely by law students. Many of the people who had invited to write for the magazine have gone on to become distinguished lawyers and academics are today in different parts of the world. As the person said, the magazine inspired readers to become soldiers in defence of democracy, in defence of secularism, in defence of justice, freedom and human rights.

I think The Leaflet is a baby at the moment, but its fast moving towards its goal.

 

Stand up for your rights

 

Just one more point before I go on to discuss today’s agenda. At the time when I was attacked, I also have to take a very personal decision whether I wish to be involved in the challenge to that order. I thought, look here I am the person who defends other people’s rights and today should I be defending my own rights. But then I thought if today I cannot stand up for my own rights how will I stand up for other people’s rights.

If you and I cannot stand up for our own rights when we are attacked, then when you will go to become a lawyer what will you do. When you fail to take a stand for your own self, how will you take up somebody else’s cause? Don’t forget this, when you will become a lawyer – first stand for yourself. Any atrocity committed on you or any unconstitutional act committed against you or one of your colleagues, remember to stand up for it. As I said, do it for fun and you will succeed.

 

 

 

 

At that time, I said to myself I refuse to be martyr, I refuse to be a victim, and I am not even a hero.  I am myself. It is natural for me to love law and to love liberty. As natural as the food I eat. It is that simple. Law and liberty come instinctively to us (advocate), and we have the instinct of justice. You cannot live unless you live in liberty. If you are not living in liberty, you are not alive, you are dead.

 

Sexual harassment in the Supreme Court of India

 

One small little thing before I go into the issue of Sabarimala. One of the students asked me – Madam, can you tell us whether you were personally sexually harassed in the Supreme Court. I have put this on record, in an article published in The Week, that, yes, I have been sexually harassed in the corridors of the Supreme Court of India. Although the corridors were covered by CCTV, this is the extent men in our community enjoy impunity from sexual harassment.  Your grey hair is no immunity to being sexually harassed. Sexual harassment is not about sex; it is more about proving your power over others.

Yes, it happened to me and I restrained him. He was wearing a senior counsel’s gown. I caught hold of the gown and confronted him in the corridors instantly and I said: “How dare you to say this to me”. He turned his head and said what happened, who are you talking about? I said I am talking about you. And of course, he moved on pretending nothing had happened and I walked into Court No 1 because I had a matter there with the then Attorney General of India who I was assisting.  But it did not stop there.

 

 

 

 

I was sitting in the first row in Court No 1, as the matter was going on and I almost forget what happened. This happens at about 10:20 am and the Court begins at 10:30 am. I said it’s okay, now it’s over, the issue is behind me. I dealt with it and there is no need to go back to the issue. We were in the middle of the argument and suddenly I turned around and I saw this man sitting in the second row. I screamed in open court in the middle of the hearing because I was so afraid that I have been stalked by him.

This is the kind of trauma a woman suffers when they are sexually harassed. I suffered that trauma, although I stopped him. Although I took action, I suffered that trauma. This is what sexual harassment does to you. It instils the fear of being stalked. It happened to me when I was the Additional Solicitor General of India. People came to me and asked tells us who this man is and we will deal with him. I said I have dealt with him myself. I know how to deal with him.

That’s the issue of sexual harassment. It is a question of power, it’s the question of sexism, it’s the question of control, misogyny, of putting the whole female sex down. We women are now in a position to speak for ourselves, to stand up on our own feet and to be the person we are.

 

Lynching: “The law may not be able to make a man love me but it can keep him from lynching me”. 

 

Now I will move on to say a few words about some of the cases I have argued and my approach to those cases. My approach, I would say and compliment myself, that my approaches to cases are different.

Take the issue of lynching. All of us know we cannot condone the delay in the lynching. Yet when the issue was in court, where were we? We were in the defensive position and saying, “My Lord an FIR has not been filed”. The next thing you know, the court will say of course an FIR has to be file and then we forget everything.

I am also very worried about the whole issue of how we understand the federalism in this country. It has always bothered me to hear the Centre say, “ Law and order is a state subject, what can we do?”

 

Indira Jaising speaks at Aligarh Muslim University | Photo Credits: AMU

 

 

On the question of lynching, I have been racking my brain what is the meaning of saying “Law and order is the state subject” and therefore the Central Government is not responsible to what goes on? These were the issues in my mind when I was asked by no less a person than Tushar Gandhi, the grandson of Mahatma Gandhi he took the issue of lynching to court and asked me to appear for him.

The question was how are we going to address the issue? The court would say file an FIR, I said no. I am going to raise the issue of federalism. I decided to challenge the government and say that this not a law and order issue. This is an issue of communalism, and communalism is the issue which the federal government has to be concerned about. It is an issue of minority rights and it is the issue of violence.

 

 

 

 

So, I wanted from the Court and the Central Government to take responsibility to stop mob lynching all over the country. I think that was the first time when I tried to propound a theory – it was not yet an established theory. Academicians present here should be able to develop this concept little further. What I wanted to tell the court was that there are certain crimes, which are not crimes against the state governments but are crimes against the Union of India; we can rightly call them federal crimes.

In our Constitution, we do not have the concept of federal crime at all. All crimes in India are the crimes against the state government and that is why you have State of Uttar Pradesh versus so and so, the State of Maharashtra versus so and so and the State of Karnataka versus so and so. Because law and order is a state subject in the State List.

I was lucky I was able to persuade Justice Dipak Misra that here is a situation where you will see a pattern of violence. It is not an isolated incident; it is violence which is directly linked to Article 15 of the Constitution of India. No one shall be discriminated on the ground of sex, caste, religion, place of birth or any one of them. What does it mean? Who takes the responsibility of violence that occurs against cast, religion, sex or place of birth?

I said immediately you are no longer in the realm of law and order, you are in the realm of Article 15 of the Constitution of India. I want the declaration that this is a crime which is contrary to Article 15 of the Constitution of India and the Government of India is responsible for stopping it.

I also said to Justice Dipak Misra that I am not interested in the FIR, I know what you will say. You will say that the law will take its own course. I know the law will take its own course. But I wanted to know what the Supreme Court of India was willing to do to prevent these incidents.

I will say to the credit of Justice Dipak Misra and Justice Chandrachud, they understood what I was trying to argue. I gave them the Articles of the Constitution which say that the Union of India has the power to issue directions to all the states to abide by the Constitution. So, they did pass the order laying down the direction which was meant for the prevention of lynching in the future.

It is a history-making judgment of the Supreme Court and I should admit I was ably assisted by a team consisting of Shadan Farasat and Warisha Farasat and many other people who helped in drafting the written submission and the people whom Tushar Gandhi had reached out to.

 

 

 

 

I want to stop here and wants to read out what Martin Luther King said, he said: “The law may not be able to make a man love me but it can keep him from lynching me”.

This morning when we were in my chamber, somebody mentioned that one of the biggest problems we are facing in our legal system today is that judgements of the Supreme Court are not implemented. That is true. I would say, that it is the ultimate injustice when a judgment of the Supreme Court is not implemented. It happened in the case of lynching, it happened in the case of Sabarimala, in the case of firecrackers and so on and so forth.

But at the same time, I will not be disheartened by it because the Supreme Court of India has a norm-setting function in this country. Way back in Olga Tellis case, it was the Senior Chandrachud who delivered the judgement on the day of his retirement. They did not give protection to the pavement dwellers on that day. But then I realised later that as time passed that there are some issues which may appear to be lost in the Supreme Court but are won on the streets. There are no full-stops in the law. No judgement is ever final; it is just an evolutionary process.

Many people have asked me: Ms Jaising over the years how did you survive? How did you continue to go on and on arguing these cases in spite of so many setbacks? I know that when a judge delivers a judgement, sometimes it is not even worth the paper it is written on; that the judges of the Supreme Court do not have the last word, you and I have the last word. We are the people of India who have the last word. If we will, if we want it we can undo any unjust judgment of the Supreme Court. There are ways of doing it and I know it is possible as I have done it.

 

Sabarimala: History is made at our feet, not the Supreme Court

 

You take the example of Sabarimala. By the way, when I start arguing a case, I always have a reason to argue the case. I will not argue just any case which comes my way. I make my own choices depending on my own ideological orientation. Somebody mentioned the Kathua case, but all of you know when Talib Hussain was repeatedly accused of rape, rightly or wrongly, I said I will not represent him because I stand in the public domain with women. I was criticised and I was told that everybody has the right to be represented. Of course, everybody has the right to be represented but does everybody has the right to be represented by me? No. Talib Hussain’s family complimented me for the decision which I took not because they disowned him but because they said: “Madam we understand you have done so much for that eight-year-old girl who died that we respect your decision”.

So, if you act from the best of motives you will have the support of the people of India. Today you respect me, why? Because I think you recognise I act from my instinct of justice. That’s what I think whenever I receive a good reception.

To come back to Sabarimala, the reason why I argued the case is indeed because I am a woman myself. And here is another example of highly innovative legal thinking even though I say so myself! I said, to tell a woman because you are menstruating you cannot enter a temple is a form of untouchability, prevented by Article 17 of the Constitution of India.

Why then I have I been criticised by my own peers and academics – very very trusted academicians, who said, untouchability under Article 17 was introduced by Dr Ambedkar for the benefit of Dalits, you cannot appropriate it. I said I will appropriate it. The Constitution of India is my legacy; I inherited the Constitution of India and it does not say that untouchability is only in relation to Dalits, it says untouchability is abolished. And If you tell me that I cannot enter the temple because I am polluted, it is untouchability.  I am happy to say, at least one judge of the Supreme Court – Justice Chandrachud –  in his separate opinion said that this is a form of untouchability.

 

 

 

 

I think in terms of legal strategy you must understand that you need to think for yourself.  Do not depend on what you learn in law school. Just think for yourself. Some people say you learn nothing in law school. In this, I want to tell you a little secret. In law school, I did not have the necessary attendance. So, my principal was very annoyed with me and forbade me from entering college. I said okay, it’s fine. But I did appear for the examination and I stood third in the University, topping in several subjects. That’s all part of the fun of life. Don’t ever stop learning. With me, I can tell you, for every single case I have argued, I have learnt something.

I want to tell you one more thing that I learn from my young juniors; they teach me a lot. Two of them are present here and they are from your University. I congratulate them, they are part of my team and I can tell you I learn from them every single day. What is special is you never stop learning. Learning does not have an expiry date on your age.

Sabarimala for me, was a very very important battle because I am a woman and I was representing an organisation called Happy to Bleed. The very name of the organisation is inspiring because it seeks to put an end to all taboos in relation to menstruation. One of the judges has recorded in his judgement how all religions discriminate against women on grounds of menstruation.

You may say that is one more judgement which gives it to the right-wing. But there was a time when women were allowed into the temple. It is true. Not only that but in my opinion, the President of the Bharatiya Janata Party, Amit Shah, committed contempt of court when he said: “The Supreme Court may do what it wants to do, we don’t recognise this judgement and we will make sure that we stop women entering Sabarimala temple”.  But let us leave him to his own remedies and let us come back to the Constitution of India on why this judgement is important.

 

Indira Jaising speaks at Aligarh Muslim University | Photo Credits: AMU

 

 

I must tell you that I have decided to argue Sabarimala because all the earlier challenges to laws and customs and traditions had been to Muslim laws. The ruling party went to court and supported the challenge to Triple Talaq and they would have liked the whole country to believe that they are champions of Muslim women. But it is false. We were present in court in large numbers to say that this is what the Constitution says and this is how the Constitution should be interpreted. There is a beautiful interpretation of Article 25 of the Constitution. Articles 25’s opening words are “subject to public order, morality, and health we all have the fundamental right”.

For me, Sabarimala was an important watershed because I wanted to say to the Hindus that we are there to challenge you. Don’t think that you can tell the nation that we are the champions of gender justice in Triple Talaq and when you come to court for Sabarimala and say no, this is protected by the right to religion. (Ed: The temple authorities had prohibited women of menstruating age from entering the temple).

I am happy to let you know when the Sabarimala judgement was ultimately implemented, Bindu, a  Law Professor and a Dalit, and Kanakadurga, a practising Hindu, were the first two women who entered the temple on January 2, 2019. They made history. History is made at our feet. History is not made in the Supreme Court of India.

As a lawyer, I expect you to be an activist inside and outside the courtroom. Inside and outside your law colleges, you cannot split your personality into a student, Muslim, Hindu – you are a citizen of India; remember and recognise that when you do your strategies.

 

Hadiya: “You are free”

 

We represented Hadiya in Court. I can tell you the proudest moment of the Supreme Court should have been, when again with Justice Dipak Misra presiding, the young woman was called to the Supreme Court. I wish the camera was allowed in the Supreme Court or there had been live streaming. She was dressed in red; she had a hijab which was not covering her face. The courtroom was packed, and Justice Misra asked her in open court: “What do you want?” And she said, “I want my husband and my religion, both.”

That was an amazing statement and the court was electrified. This one single woman stood her ground in the middle of the crowd and then Justice Dipak Misra, with Justice Chandrachud and Justice Khanwilkar, had no option but to say, “You are free”. At that time, she came escorted by a whole lot of women police officers.

 

 

 

 

Another thing which I found very appealing about her was that she had a very good relationship with those policewomen. They were chatting away with each other; they were her only friends at that time. She did not have a lawyer with her. We were the lawyers but we were standing where the lawyers stand in court. She was alone when she walked into the court with the police. These are the really amazing moments that as a lawyer I have witnessed in the Supreme Court of India.

The final thing I would like to say that if you go logically by Article 15 of the Constitution of India, and you focus your attention on race, caste, religion and sex, you are bound to reach your goal of justice. The final act of discrimination which I have been protesting all my life is discrimination based on caste.

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