'Constitution Itself Is Feminist', Justice Chandrachud On Transformative Constitution & Feminism

Agreeing that the Constitution is itself feminist, Justice Chandrachud articulated, “feminism is lot about disruption of social hierarchies and that is what the constitution intends to do. Transformation involves a disruption of the existing social structures”.O. P. Jindal Global University, in collaboration with National Law University, Delhi and Ambedkar University, Delhi, on Saturday hosted a round table on “Feminism in Practice: Feminist Lawyering and Feminist Judging” at the India Habitat Centre.The event witnessed Supreme Court judge Justice D. Y. Chandrachud, J & K High Court Chief Justice Gita Mittal and former Madras High Court judge Justice Prabha Sridevan, Advocates Malavika Rajkotia and Vrinda Grover and academician Pratiksha Baxi in an engaging discussion moderated by Senior Advocate Rebecca John.In response to Ms. John’s question if a judge could be feminist, Justice Chandrachud reflected, “let me be honest- Judges do have ideologies. To say that they do not is to conceal a Fundamental truth. So you have judges who are more liberal or more conservative, more tuned towards the tenant or the landlord, the employee or the employer. It is impossible to completely isolate your ideology from judging...however, no feminist judges in even Canada, Australia or the US would call themselves so as they are doing so only by virtue of their job, they are deciding objectively. If you call yourself a feminist judge or an acquitting judge, it could mean that you so decide irrespective of the facts....what is critical is if as a judge you are giving effect to the constitutional values of equality, liberty and fraternity. The Constitution requires you to give effect to the fundamental essence of equality, the equality which is the substance of the Constitution. When you apply feminist principles in deciding, you are only giving effect to this substantive equality of the constitution....”“What does feminism add to the process of adjudication? Does it contribute to the improvement of the jurisprudence?”, pressed Ms. John.“The first thing the judge needs to understand is that the law does not operate on pre-existing gender realities but contributes to their construction. Law attributes to the construction of gender identities.As a judge of the Bombay High Court, I sat with Justice Ranjana Desai to deal with criminal appeals and she said that it is nauseating how all cases where women are subjected to violence have the same modalities- a nylon rope, a matchbox and a can of kerosene. At times, she would even tell me that I am wrong and that the prosecution evidence is not sufficient....judges may decide contrary to popular antagonistic social beliefs. Like my adultery judgment is being criticised for promoting licentious behaviour....what we learn of the law and how we apply it is based on the judges’ knowledge of the world, which is a man’s world, and that is why a feminist outlook assumes significance....”, replied the judge.When asked if feminist insights have influenced how he looks at prior decisions, Justice Chandrachud responded in the affirmative.“There are two levels- firstly, when the judge is drafting an opinion and secondly, when you are looking back at it. The real challenge is to define how many layers the judgment would be drafted in....adultery was a straightforward case on the basis of Article 14 alone as section 497 is so hostile to it. The wife of the adulterer has no role to play in the criminal prosecution, the adulteress cannot be tried even as an abettor, and her husband is deemed to not have been hurt by the act if he has consented to it or connived for it. Article 14 is clear but how far do you go then? The next argument was of Article 15 which we also took recourse to in (the decriminalisation of section 377 of the IPC). We went into Nargesh Meerza....that discrimination on the grounds of sex along with something else is not prohibited by the constitution could be stereotypical and deeply hurting to the dignity and autonomy of the woman....the third point was of sexual autonomy and the key issue for me was whether to speak on it or not as I knew the bench to not be with me. And I did not mean to accord open permission for licentious behaviour; I only said that one’s control over their body, as it exists before marriage, does not cease after it and that marriage as an institution does not deprive you of your sexual autonomy....”, he elaborated.“Take the case of the privacy judgment (2017). The right to privacy, dignity and personal autonomy should not become a shield for people to say that what goes on inside their house is not the State’s business. That is where most depravities happen! It could prevent investigation into crimes against women perpetrating into patriarchy....we could have explored this dimension in (Justice K. S. Puttuswamy) more....similarly, euthanasia was seemingly gender neutral. One of the cases was of Aruna Shanbaug. Before I read Ratna Kapoor’s piece on it, I did not...

'Constitution Itself Is Feminist', Justice Chandrachud On Transformative Constitution & Feminism

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