[dropcap]A[/dropcap]t a roundtable, “Feminism in Practice: Feminist Lawyering and Feminist Judging” hosted by O P Jindal Global University in collaboration with National Law University, Delhi and Ambedkar University, Delhi on October 6, 2018 as a part of feminist re-writing judgments workshop at the Indian Habitat Centre, Justice DY Chandrachud said: “liberty and equality is the essence of the Constitution. Liberty, equality and a sense of fraternity… once you accept that is really the fundamental constitutional foundation for our society… in which to be really a feminist in that sense is to do what the Constitution requires you to do, to give effect to the fundamental notions of equality which we are bound by the office and the nature of our calling to pursue. In that sense when you apply feminist principles either in terms of outcome, in terms of reasoning, procedures you follow in court, you are doing nothing to my mind but to give effect to the substantive equality.”
Apart from Supreme Court judge Justice D Y Chandrachud, the other discussants in the panel were — Chief Justice of Jammu and Kashmir, Justice Gita Mittal; former Madras High Court judge, Justice Prabha Sridevan; Advocates Vrinda Grover and Malavika Rajkotia and academician Pratiksha Baxi. It was moderated by Advocate Rebecca John.
Justice Chandrachud accepting the fact the judges do have ideologies said: “to say they do not is to conceal a fundamental truth.” He added that judges are more “liberal or more conservative, more turned towards the tenant or the landlord, the employer or the employee… however no feminist judges in the world will call themselves so as they are doing so only by the virtue of their jobs, they are deciding objectively.”
In response to Advocate John’s question on “what does feminism add to the process of adjudication and how does it help in the evolution of jurisdiction?”, Justice Chandrachud responded, “The first thing that the judge needs to understand that the law does not simply operate on pre-existing gender realities but the law contributes to the construction of those realities. So, essentially what has happened in the law is a postulate which operates in pre-existing gender and society. But, the law also contributes to the construction of gendered identity. So, an assessment of that to my mind is crucial.” He further added “it is important for the judge in the process of judging to have due regard to the women’s experience so to speak or to the woman question… I sat as a judge in the Bombay High Court with the colleague who is a very distinguished criminal law knowing judge, Ms Ranjana Desai and when I sat with her, over a period of time, dealing with criminal appeals, the first thing she told me was that it is almost nauseating in how many criminal appeals you will see the same modalities-nylon rope, a can of kerosene and a matchbox. You will see that repeatedly in case after case- where women are subjected to such grave violation of their rights in the name of dowry or whatever in basically a patriarchal society. But sitting with a colleague who had far more diverse exposure to social reality than I had, I realized the positives that I gained in terms of perspective and the perspective was not necessarily always in terms of say where the man is guilty. Very often I would find she would be telling me, “hey listen you are wrong. There is a problem here with the evidence which the prosecution has brought”, contrary to what the popular antagonistic social belief would lead us to believe.”
He continued: “But the fact that having a diverse exposure to realities of gender exposes you to very divergent thought and I think that is crucial to the process of judging because a lot of what I think men judges like me, and I think I am no exception there, is that a lot what we learn in terms of our law and what we apply in terms of our social experiences is based on the judges knowledge of the world and I think that knowledge of the world is equally masculine and gendered and that is, therefore, an area where exposure to feminist thought allows the judge to have perhaps a more different view of the law.”
Answering with a yes on a question whether Justice Chandrachud had re-evaluated his prior decisions with the feminist insights, he said, “I will deal with it at two levels-when a judge is crafting an opinion and when you look back at what you have done… There are layers of reasoning in a judgment. I think the real challenge before a judge is to define the layers through which your judgment is to be drafted. For instance, when I was dealing with the adultery issue, it is a straightforward case for a judge in terms of Article 14 because the provision Section 497 is so hostile to women that under Article 14 argument it has to fall. For instance, the spouse of the man who is engaged in the ‘adulterous’ relationship has no role to play. The women with whom he is involved again cannot be tried as an abettor, third, the man who is engaged in an ‘adulterous’ relationship would be exempted from the penal sanctions if the women’s husband were to consent or even connive at his wife engaging in sexual intercourse with another man. The fact that women’s husband is really offended and he has not consented, if he were to consent then it is not a crime or even if he was devious enough to connive with his wife having been involved in a sexual relationship with somebody else would not have been a crime. Article 14 argument was extremely straightforward.
The real challenge in all these cases is how far do you go then. I thought the next layer that we really needed to explore was the Article 15 layer. We also did that in the judgment in Section 377. We again went to the correctness of the judgment in Nargesh Mirza because Article 15 says, discrimination only on the ground of sex alone is prohibited by our Constitution. What happens if the discrimination is on the ground of sex and something else? It is not prohibited by the Constitution. We felt that is essentially stereotypical because you may still discriminate against women and there may be intersectional discrimination. And if you discriminate against women on not only on the ground of sex but also on some other ground that may still be deeply offensive to human dignity because that discrimination deeply affects her status, her autonomy as an individual.
The third layer- and I believe the feminist jurisprudence has really changed the discourse around courts-was the most difficult point to draft for I knew that I did not necessarily have the entirety of the bench with me on this as questioning was unfolding on and which was the issue of sexual autonomy. A key issue for me really was while drafting the judgement — do I speak about sexual autonomy or do I not speak about sexual autonomy. I think I took that call.
And that is where I feel when I am speaking about the layers of reasoning that we had here to seize the opportunity to talk about the sexual autonomy of a woman which is not to say as most mainstream media which has criticized my judgment saying this is an open invitation to licentious behaviour. That is not what we meant by sexual autonomy. All that we intended to say is that your control over your body you had before you get married doesn’t seize to be control over your body after you get married. Marriage as an institution does not deprive you over the essential control over your own sexuality. The impact of that will be on various other matter apart from adultery. But that’s where we try to place the layers of reasoning.
Or take the case of privacy and that’s where I feel I perhaps should have gone a little further which is the second part I want to address. In the privacy judgement when we were defining privacy in terms of the Constitutional right- the right to dignity, the right to personal autonomy, right to liberty. Equally, I was very careful to the fact that privacy should not be a shield for individuals to say that close confines of the home is beyond the reach of law in terms of privacy. We know that some of the worse injustices are perpetrated within the family and perhaps the family in the crucible of social injustice. So, while drafting privacy we looked at some feminist jurisprudence. One of the criticisms of the privacy doctrine may be used as a shield to prevent the investigation into a crime against women. To say well I can do what I want within the four confines of my home which is again perpetuating patriarchy. Looking back, I feel we could have explored that dimension in Puttaswamy a little more carefully. When you write a judgment which is such a broad canvas, I am not sure if you really want to go into the nitty gritties. Later on, when you have a case under that I feel I wish I had more time to deal with it.
Or I’ll give you another illustration, when I was dealing with the Euthanasia case, seemingly gender neutral because we held that every individual, as a part of autonomy over your body has a right to decide when to stop medical treatment, to say well! Let me pass away with grace, not active euthanasia but passive euthanasia. Now one of the cases that came before us what Aruna Shanbaug case. Frankly, until I read an amazing piece on Aruna Shanbaug written by Ratna Kapoor, I did not perceive that there was in any way a gender connection here- a feminist connection here. Ratna Kapoor says that isn’t it amazing, this whole incident, this crime took place in a public hospital in Mumbai when Aruna Shanbag was subjected to a horrendous crime of sexual violence and then she was compelled to be in that very hospital for the rest of her life. And we gave precedence to her caregivers over what would have been perhaps her own perception. Would she have wanted to stay in the same hospital for thirty-five years had she know that she would remain in the same place where she was subjected to sexual violence?
In the course of hearing in the Aruna Shanbaug case, Justice Katju records in his statement, that they played a videotape in the courtroom of Aruna Shanbaug examined by the doctors in the KEM hospital in Mumbai. How completely disruptive of her dignity was it! Justice Katju spoke of the Nuremberg trial and said if that could be publicized then why can’t this be? I fail to see what the connection was. In terms of layers of reasoning, I think feminist jurisprudence has been extraordinarily crucial and Pratiksha when you said and answering to your question, is there a greater interaction between the academia, lawyers and judges, I think that’s coming about. If you see in the last one year, a lot of thought which has gone into these judgments is not original judicial thought. It is a thought which is clearly generated in the academia which now as judges we have come to adopt.”
Justice Chandrachud points the problem in the system which structurally disbars women from entering judiciary. To illustrate his point, he shares an example from his experience when he was the Chief Justice of Allahabad High Court. “In my experience, it was this- we don’t have women judges coming in perhaps because a lot of women coming from the rural state, their education develop much later than say Delhi or Maharashtra or Tamil Nadu or Karnataka. That’s not enough ground to say that we don’t have women lawyers coming in and joining the judges. As I see, the real problem with this, we have laid down yardsticks for a judicial appointment which are so conventional and which in themselves have gender biases. So how do we define who is suitable to be appointed as judges of the high court? Honesty, integrity. Absolutely clear. I don’t think a feminist would say that we shouldn’t have judges with these primary criteria. But how do you assess the success of the bar? The success of the bar is a key ingredient in the appointment of the judges. The success of the bar is defined by us in terms of how many reported judgements do you have; what is your income over the last year, two years or three years; how many cases have you handled. Now what I saw as the Chief Justice of Allahabad High Court is this, in fact, I sent the name of a woman lawyer for the appointment. She was almost the first literate member of her family, she belonged to a minority group and whenever she appeared before the court I found that she was extraordinarily articulate in her submission. But she did not fulfil any of the said criteria. Her income was much below the prescribed yardstick. The reason was that she appeared only for labourers and she appeared for the workers who in UP are extraordinarily poor. Her name was deleted from her mentioning list.”
He continued, “The issue is not about men judges not wanting women lawyers in the judiciary. In fact, there is a conscious effort. You are constantly told please send more names of lawyers who belong to the minorities, or Schedule Caste and Schedule Tribe. The Law minister keeps writing these letters to the Chief Justice of the High Courts. The issue is this- how do you assess women lawyers? If you need a greater sense of inclusion in the judiciary in the grounds of diversity, then you need to change the yardsticks by which you assess the people who will be introduced into the judiciary. Unless we change those yardsticks- replacing the collegium with another system is not going to work. You will have the same people and the very same value system operating, whether you have this system or another system. You essentially must break the yardstick that we have applied and have been so conventional about.
One area which is a cause for great optimism for the future is that in a lot of states-including the State of UP- now have thirty percent horizontal reservation for women so that women lawyers, young women are being attracted to the judiciary through the career path by being the judges at the lowest level. What is very interesting is, the number of women who are actually being drawn to the judiciary at that level is far higher than the thirty percent reservation which is a clear indicator that women are not getting in because of affirmative action but because of merit. Now it’s just that how do we then translate this into a more inclusive system for the future.”
Pointing towards a fixed perception of man and woman he says, “I think, not in terms of the substantive law that we apply but also in terms of procedures we apply in the court, and I see this happening very regularly, there is a perception of how a woman and a man should be. That is essentially the problem. What is wrong with a woman lawyer who is aggressive? I think lawyers are supposed to be a little aggressive. They are fighting against injustice. What difference does it make if a woman is aggressive? A man is aggressive. One would assume it would not make a difference, but it does make a difference. Because there is a perception of how a woman should be arguing- she should be very graceful, she should be very submissive, she should be easy to compromise on a good suggestion from the court. This is not expected from a male lawyer, why should this be expected from a female lawyer.”