In the hands of creative lawyers and creative judges, the Constitution can achieve a lot, senior advocate Indira Jaising said during her speech at the 112th edition of Lawyers Round Table.
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SUMMING up her decades-long career as an advocate and her relationship with the Constitution of India, senior advocate Indira Jaising on Friday said her experience has been of a “constant romance with the Constitution, which has served me more like a home.”
Jaising had been invited to speak at the 112th edition of Lawyers Round Table.
The topic of discussion was ‘What does the Constitution mean to “We the people of India”?’ but Jaising instead chose to discuss what the Constitution means to her personally.
“To begin with, the Constitution of India gave me citizenship, which has rightly been called the right to have rights,” Jaising said.
Humorously noting that she was “older than the Constitution itself”, she stated that the era she was born in had influenced the path of her career.
“My lawyering has been influenced by the era in which I was born. Being one of the Midnight’s Children and a child of the independence movement, I inherited the Constitution of India and the values that it professes,” she said.
The Indian independence movement was a struggle for autonomous administration, but a parallel struggle, equally significant, still continues, Jaising said.
This is the struggle for social emancipation, replacement of an unequal social order, a fight for undoing injustice and for righting fundamental wrongs, she said, quoting from a judgment authored by the Chief Justice of India Dr D. Y. Chandrachud.
The recently enacted constitutional amendment providing for reservation of one-third seats for women in Lok Sabha, state legislatures and the Delhi legislative assembly “is one milestone in that struggle,” Jaising stated.
“The destination has not been reached yet,” she added.
Using the Constitution creatively
The Constitution’s guarantee in Article 14 on equality before the law and equal protection of law meant that “I could be equal to my male colleagues at the Bar and practice the calling of my choice,” Jaising said.
In her career as an advocate, Jaising said, she has had the opportunity to represent women seeking freedom from discrimination.
One such instance was the case of air hostesses of Air India who were not being given supervisory positions in comparison to their male colleagues and were being asked to resign on getting married or bearing children.
She has also represented students rusticated from their colleges for having organised canteen workers, homeless persons living on pavements because they were being told by the municipal authorities that they were encroachers and street vendors who were seeking the right to hawk.
“Each of these cases invoked fundamental rights. Many of these cases led to history-making judgments on otherwise invisible rights,” Jaising said.
Jaising was there when public interest litigation was established in India as a way for public-spirit citizens to move court for what they saw as injustice.
“There was nothing that the courts were unwilling to look at. From minimum wages, to equal pay for equal work to rights of prisoners. All these matters landed in court and in all of them, we found the court being very creative,” she said.
Arguing for the State
Jaising served as the Additional Solicitor General of India (ASG) from 2009–14.
Recalling that aspect of her career, she said, “During that period, I could not be my own person. I had to handle cases that were assigned to me.”
But she added that she was fortunate to work with late senior advocate Goolam Essaji Vahanvati, who was then the Attorney General for India.
In her early days as the ASG, Vahanvati had told her, “You are not a public servant. You are a professional whose job is to advise the government of India, not the other way around.
“Do not take instructions from the government, give them instructions on what they should be doing.”
Recalling the advice, Jaising said it was a “very liberating thought, because based on that I was able to tell the court that many of the special leave petitions filed by the government were not worthy of admission by the Supreme Court.”
She ceased to be an ASG in 2014 when the Bharatiya Janata Party was sworn in. “As you know, all law officers resign when a new government comes to power,” she said.
Reclaiming her advocacy
It was only after she left the office of the ASG that she found her own person again with liberty to take on cases that she wished to. Naturally, she was again attracted to the rights of women, she said.
One of the first cases that she took up thereafter was the Sabarimala case.
Women in their ‘menstruating years’ (between the ages of 10 to 50) were customarily prohibited from entering the sanctum sanctorum of the temple to ‘protect the celibacy’ of the temple deity.
The argument on the other side, Jaising said, was to say that since women below the age of 10, and above the age of 50 were allowed to enter the temple, the prohibition on entry was not based on sex.
“To which I answered, it is discrimination based on menstruation, and since only women menstruate, the discrimination was in fact based on sex.”
A Constitution Bench of the Supreme Court, in its judgment titled Indian Young Lawyers’ Association versus State of Kerala (2018) declared the prohibition on the entry unconstitutional.
The practice followed by the Sabrimala temple was discriminatory under Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth), the majority of the Bench held.
“In doing so, it rejected the argument that the temple had the right to manage its own affairs under Article 26,” Jaising said.
Another case she recalled having argued in court is the triple talaq case, which she revealed was not an easy one to argue.
In that case, Jaising represented the Bebaak Collective, an association of Muslim women who advocate for the rights of women marginalised by religion.
One reason why it was tough to argue was because in a 1951 judgment (State of Bombay versus Narasu Appa Mali), the Bombay High Court had held that personal laws are not amenable to challenge for being violative of fundamental rights.
“The tragedy was that it was not appealed in the Supreme Court, but it was also an advantage since when the Supreme Court heard the Triple Talaq case, it was not binding on it,” she noted.
The second challenge was to convince the court personal laws can be challenged on the ground of violation of fundamental rights, she averred.
One argument that she forwarded was that there cannot be a disparity between how a Muslim man and a Muslim woman could seek a divorce.
Considering the pronouncement of ‘talaq’ three times by a Muslim man as a valid divorce was akin to an “extra-judicial divorce”, she had argued.
“The problem with extra-judicial divorce is that questions of custody, maintenance and alimony are not settled,” she said.
In 2017, a Constitution Bench of the Supreme Court, by a 3:2 majority, held the practice of triple talaq manifestly arbitrary and unconstitutional in Shayara Bano versus Union of India (2017).
Jaising’s colleagues at the Bar have been successful in arguing for the reading down Section 377 (Unnatural offences) of the Indian Penal Code, 1860, securing rights to transgender persons and the declaration of right to privacy as a fundamental right.
“All of this shows what the Constitution of India can do in the hands of creative lawyers and creative judges,” she concluded.
