‘When cases are dismissed as govt policy matters, Constitution stands diminished,’ says Indira Jaising, senior advocate & social activist

You begin the book by comparing preparing for a case with a nine-month pregnancy, saying only a woman can argue a case well. But in a country where only 15% lawyers are women, about 13% women judges, abysmally low senior partners in law firms, and no woman CJI yet—Justice BV Nagarathna will be first woman CJI next year for only 36 days—how did you survive what is obviously a man’s world?

I survived by focusing my attention on my areas of interest. My question has always been what women bring to the table. And my answer to that is: a new epistemology, a lived experience and a knowledge of love and life. I’ve used the Constitution as an instrument of social change, seen through the eyes of a woman. Women are survivors, but they are also mischievous survivors. I did not compromise on my femininity, nor did I want to talk and walk like a man.

You write about a lack of guarantee of equality before the law for women and that women are outcasts in the eyes of law. Would you blame the Constitution for it or male dominance in the judicial set-up?

Both. Equality before the law and equal protection of the laws mean nothing unless they are translated into day-to-day life in what is considered the private domain. There is no composite equality law in India that addresses inequality in our community or family spaces. This needs to change. Male-dominated judiciaries have no knowledge of the reality of a woman’s life, yet they sit in judgment over these cases. This affects decisions relating to rape, sexual harassment at the workplace, domestic violence and rape within marriage—all issues specific to women.

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There is a reluctance to talk about these problems. The domain of law relating to women in India is plagued by a resignation to ‘custom and usage’ as law, enabling a regressive, backward-looking ‘morality’ to govern their lives. The assertion of women’s rights in this century has led to a severe backlash, creating a narrative that women ‘misuse’ the law. This is just another way of saying that women should remain within the bounds of the home and not demand equality in the public domain. Women in India are humoured more when they are dead than when they are alive.

At the same time, a lot of feminist gains in India have come through courts and legislation. But surely legal reform alone cannot meaningfully transform deeply social structures like patriarchy and caste?

Yes, many progressive changes have come through the courts. But the unfortunate truth is that without the active support of the State to ‘protect, fulfill and respect’ the rights of women, things cannot change. We need to understand that there is a deeply symbiotic relationship between social change brought about by civil society activism and the courts. Neither can be a standalone strategy.

While campaigning for social change we cannot avoid the courts because they are the last resort against oppression by a dominant State that is unwilling to perform its role as a catalyst for change. India is a classic example of a welfare state, where the Directive Principles of State Policy cast a duty on the State to transform social relationships and question the concentration of power in the hands of a few.

You write strongly about the judiciary’s deference to the executive since the past many decades and how it is deeply embedded in judicial thinking. What does that do to the idea of justice?

Its direct impact is felt on life and liberty. When the best among us are put away behind bars, we lose not just one individual, but also the momentum of a movement dedicated to social justice. When courts are unable to free them, and trials remain pending for years, we lose access to justice. When our cases are dismissed as ‘matters of policy’ for the government, the Constitution stands diminished.