Senior Advocate Indira Jaising has recently said whenever the question of equal rights for women has come forward, the approach of the courts has been disappointing.
She was speaking on the occasion of Annual Themed Conference On "Transformative Constitutionalism: Exploring Ideas and Possibilities in Its Theory and Practice at National Law School of India University, Bangalore
"While the slew of judgments in Puttuswamy, Nalsar, Shafin Jahan and Navtej Johar have reflected the progressive elements in the judiciary, the larger picture has no doubt been rather grim. The relief provided has been limited, and courts have largely shied away from taking any firm stand against the government of the day."
She said nothing epitomizes this limitation of the judiciary more than its judgments in several cases relating to rights of women, starting from 1950's to the recent cases of Sabrimala and Triple Talak. Though the latter two do have a progressive impact, what is being suggested is that the reasoning could be more rigorous and transformative.
She said the judgments of the Supreme Court starting from the case of Narasu Appu have continuously ignored the question of gender equality on the pretext that personal law is not law within the meaning of Article 13 of the Constitution.
"The ghost of Narsu Appu stalks the SC to this day and mainly on the rights of women. This stand of the court was later challenged in the cases of Mary Roy, Gita Hariharan, Shah Bano, Goolrookh, Sabrimala, and the Triple Talak but the court dodged the question. Religion remains the last frontier that woman have to cross to attain equality"
Also, as was shown in the recent Triple Talak case, the Supreme Court came up with divided opinions as to why the practice of Triple Talak must be stopped. While it was held by two judges that the practice was manifestly arbitrary and unconstitutional, other Judges said it was unislamic None of the judges said it was violation of Article 15 or 21. The court relied on the doctrine of "essential practices," continuing the legitimacy of laws which are at the source of this discrimination.
With regard to the Supreme Court's much-spoken about 2018 verdict in the Sabarimala Temple Entry case, she iterated,
"I have been much criticised for categorising menstrual taboos as 'untouchability', on the ground that I was appropriating the struggles of Dalits! My question was: 'Why not?' I acknowledge that Article 17 was inserted in the context of untouchability of the scheduled castes, but there are always new and emerging forms of untouchability"
In the context of the Goolrookh Gupta case, where a Parsi women, having married a Hindu man, was restrained from attending her father's funeral rites at the Fire Temple, she discussed-
"It presents a frightening picture. A rather shocking proposition that a woman acquires the religion of her husband on marriage has been upheld by the Gujarat High Court. Thus a woman has the religion of her father on birth and of her husband on marriage!"
She elaborated on the Hadiya case as an illustration of transforming interpersonal relationships- "Arguments in this case ranged from questioning if Hadiya, a 24 year old Hindu woman had been brainwashed, programmed, or indoctrinated to convert to Islam and marry a Muslim man. The work of the RSS was on view in full force in protesting the marriage of a Hindu woman to a Muslim man. However, Hadiya stood in the Supreme Court, when the court directed that they want to interact with her. Upon being questioned,
"Her crystal clear voice rang through the court room, "I want my freedom." Did the court have any choice at that point? No"
She also said In recent times, the jurisprudence around transformative constitutionalism has developed strongly, especially in relation to the rights of the LGBTQI communities, through a series of judgments.
"In what has to be considered one of the most celebrated judgments that has been delivered by the Supreme Court in recent times, in Navtej Johar v. Union of India, the court held that 'Transformative Constitutionalism' is considered to be one of the objectives of adopting a constitution itself. The purpose of it is to have a Constitution which guides the nation of transforming itself from a medieval and hierarchical society to an egalitarian democracy to embrace the ideals enshrined in the Preamble to the Constitution. It was held that as a constitutional court whose job is to protect its people from humiliation and discrimination, it cannot provide a static interpretation to the rights of liberty and equality and remain a mute spectator to the struggle for the realization and attainment of rights"
Thus, whenever the question of equal rights for women has come forward, the approach of the courts has been disappointing.
Rajasthan HC Judgment on My Lord
"India's constitutional moment was said to be a shift away from old practices and hierarchies. Seventy years since the Constitution came into force, the Rajasthan High Court has resolved that advocates ought not to address Judges as 'My Lord', given the mandate of Article 146", she advanced calling it "a classic example of what transformation from colonialism to Republicanism could mean".
She also said that PIL can be an instrument of oppression perhaps more deadly than any other since it is so heavily dependent on the "discretion" of judges.
"And that brings me to the point out that rule of 'discretion' is contrary to the rule of law in that it introduces the rule of predominantly men and occasionally women. I am aware that no law can be implemented; no executive authority can function without "discretion" as a legal concept in decision making. But India lacks a theory of "abuse of process" making it possible for decision to degenerate to favoritism; face law and not case law and targeting of dissenters, under cover of law. This must be remedied forthwith. Power cannot be used for a colleterial purpose in the name of "discretion". India lacks a theory of responsibility for wrongdoing. India lacks command responsibility for wrongdoing . What has in fair measure, is impurity for decision makers".
She mentioned the episode where Attorney General K. K. Venugopal, in February, had referred to her as Senior Counsel Anand Grover's wife, rather than a person in her own right- "As Justice Krishan Iyer once said 'we must bring up our judges' and I may add,our male colleagues at the Bar. Transformations happen in these small ways on a day to day basis when we refuse to let a small injustice happen to us"
Describing it as a "decolonialization of the legal profession and of our laws", she said it was her motivation to question the institution of Senior Counsel (the equivalent of Queens counsel) and for shedding the Senior gown on 15th August 2017, Independence day-
"Since that day I have not worn a Senior gown despite my peers urging and they tell me 'you have succeeded in that case so take back your senior gown'...I don't know what success means".
As far as I can see, that was my Rosa Parks moment - it came to me unasked for, refusing to wear the Senior Gown"
Indicating the recent episode where her and Mr. Grover's home and offices were raided by the CBI for for alleged violations of the FCRA in their NGO Lawyers Collective, Ms. Jaising said,
"You the students at NLSU have had your own transformative moment inviting me, with full knowledge of the fact that an FIR has been registered against Lawyers Collective, Anand Grover and me and our premises have been 'raided' - a word that finds no place in the CrPC.
I cannot resist telling you that on the day of the 'raid', Anand Grover was in court Number 4 in the Supreme Court of India arguing his part- heard matter. He told the CBI officers;
'I have never let down a client and asked for an adjournment and I will not do it today'. It was a defining and a testing moment for us to be out there despite knowing that we were being targeted for being human rights defenders"
Freedom and independence can no longer be taken for granted, to make way for economic rights, she asserted in the light of the Kanhaiya Kumar and Bhima Koregaon instances-
"We at the lawyers Collective too thought when we argued the Olga Tellis case and the Bombay Hawkers Union cases that economic rights is what we need to work on - it was a magic wand that would remove poverty. I have since then realized that my generation took its civil and political liberties for granted. Life has come full-circle. For many including me and Anand Grover, for cartoonists and poets, students, Dalits and farmers, for the accused in the Bhima Koregaon case, the fight for liberty has just begun all over again"
Calling the Constitution a radical document that seeks to reconstitute the society, while being mindful that the old hierarchies cannot be wished away, Ms. Jaising also spoke of sexual harassment faced by interns, lawyers and even female judges, and the stand of the top court on mob lynching, homosexuality, privacy as a Fundamental Right and the dilution of the SC/ST Act.