'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 realise that it had a gender connect, that the crime of the brutal rape had taken place inside the very public hospital where the victim was compelled to be for the rest of her life! Would she have wanted to stay there for 35 years if she had been capable of knowing that? Justice (Markandey) Katju records in his judgment that a video of her being examined by the doctors was played. How completely destructive of her dignity! It was said that if the Nuremberg trials could be shown then why not this. I fail to see the connection!”, he continued.

Justice Chandrachud proceeded to remark that the yardsticks for appointment to the higher judiciary are “conventional and gender-biased”- “speaking from my experience as the Chief Justice of the Allahabad High Court, we do not have too many women judges coming in because their education develops later. Honesty and integrity are obviously important criteria that no feminist would object to. But how would you assess success at the bar? Income over the last 2-3 years, number of reported judgments, how many cases have been handled....in fact, I had recommended the name of a woman lawyer who belonged to a minority, who was the first literate member of her family and each time she appeared before the court, her legal prowess was extraordinary. But her income was below the yardstick as she generally appeared on behalf of the labour....it is not like the male judges do not want many female judges. The Law Minister keeps asking Chief Justices of High Courts for candidates from the minorities or the SC/ST. These yardsticks have to be changed; merely replacing the collegium system with another mechanism will not help....”

“In UP, there is 30% horizontal reservation for women. What is interesting is that the number of women being drawn in is far higher than this 30% which means that they are not getting in on account of the affirmative action but on merit”, he added.

Weighing in, Justice Sridevan advanced, “30% is fine. But 2:1 is the ratio of women coming (to the bench) from the bar....You have to practice before the Chief Justice or he will not know you! And a family court lawyer would usually never come there....even the district judges posted in family courts think it is a punishment....if there are not many women, this profile will not change....”

Chief Justice Mittal also chipped in- “in Delhi (she was the former Acting Chief Justice of the Delhi High Court), we found that the success rate of women was 60% and we are inducting to that extent in the subordinate judiciary as well as at the Additional District Judge level. (‘It is only when we come to places where men are making the decisions that we are falling out’, she remarked in a lighter vein)....In J & K, 60% of the litigation is for the regularisation of the labour and the chowkidars who are making as low as Rs. 6000 a month....we must review the yardsticks (for elevation to the bench)....we may even make them regional, different for advocates in such places as Chattisgarh, *Mizoram and Nagaland....”

Justice Gita Mittal

Justice Chandrachud was of the opinion that feminism be applied not just to the substantive law but extended to the procedure that is applied in court- “there is a perception as to how a woman lawyer should be. She is expected to be graceful, submissive and eager to compromise when reasonable terms are suggested. Why should this be expected of her?....Lawyers are supposed to be aggressive! how is it any different if a woman advocate is aggressive? This should not make any difference but it does....Prevalent double standards do apply....”

Discussing an “issue of technology which was not gender-biased but was so treated”, he elaborated, “a majority of our court felt that by allowing video conferencing of family court matters, women would be placed at a disadvantage. I felt that it was in fact gender neutral, considering that the proceedings could be in Delhi where the man is in Bangalore, or where the matter is in a Chhattisgarh court while the woman is in Chennai....”

On a humorous note, he stated that as far as his dissenting opinion in the recently-rendered Aadhaar verdict is concerned, he may have been wrong considering four judges did not agreed with him. However, he proceeded to clarify that he stands by his decision, explaining that it involved important issues of exclusion of marginalised groups, and particularly of the women in those groups- “social reality cannot be dealt with by an interface with technology, by ignoring social structures that barricade the access to technology....in such a social  structure, technology may be disabling....”

On the linking of transformative constitutionalism with feminism, he observed, “the Constitution was framed during a period when there was a transfer of political power from the colonial lords to the people themselves. At the same time, there was another simultaneous movement, the movement for social freedom led by the likes of Dr. B. R. Ambedkar”.
“When you speak of transformative constitutionalism, you speak of infusion of the values of liberty, equality, fraternity and dignity in the social order”, he noted.
Agreeing that the Constitution is itself feminist, Justice Chandrachud articulated, “feminism is a lot about disruption  of social hierarchies and that is what the constitution intends to do. Transformation involves a disruption of the existing social structures”.

When asked what feminist judging brings to the table, Chief Justice Mittal replied, “feminist judging, in my experience, is about the women’s access to justice....there may be a tribal woman suing for maintenance, a city-bred girl facing sexual harassment at the workplace or a college girl being demanded undue favours for better marks....the major barriers in accessing justice are the family and friends who dissuade against reaching out for assistance, ignorance of legal remedies and the financial obstacles....access to justice is not synonymous with the court and all judges, not just female judges, must realise this. This is of more importance in the Kashmir province....junior lawyers, more so first generation lawyers, find it difficult to get a foothold in the profession and it is a hundred times harder for women....in kashmir, women are repeatedly coming to me because they think I can take away all their problems and I do not even know where to start yet....we have started a robust programme for mediation and legal aid. The effort is to reach out to as many people as we can....Women bring their own experiences to the bench and it is important we give them a fair chance....”

She was of the view that such discussions would not satisfactorily serve the ends if they are confined to judges, lawyers and academicians and if other professionals, such as doctors, are not brought on board- “Suzette Jordan, the (2012) Park Street rape victim, talked about her experience, not just in the courtroom but of the indignity of the medical examination in Kolkata. She was a 34-year old single mother of two who was asked to strip, with her hands flung out, in a room which had huge glass windows and which was overlooking a boys’ college, while the doctors prodded her....in the Delhi High Court, we tried to sensitise the doctors in the light of the same....”

In context of the proposed Vulnerable Victim/Witness Courtroom programmes, she mentioned how the essence of the evidence under section 164 of the Cr. P. C. may be lost where “there is a Tamil witness before a Bengali judge”- “Chief Justice A. P. Shah (former Chief Justice of the Delhi High Court) had appointed a committee for designing a vulnerable victim complex to prevent secondary traumatisation in the court. On account of paucity of space, only one district judge had granted us one room in the Karkardooma court complex (in Delhi). Since the number of rape cases is so high, we had to restrict the definition to, inter alia, sexual offences and to child witnesses. We picked up almost 5,500 rape victims from their houses and there was no interaction between the victims and the accused. We documented the profiles of the victims and the accused....at present, there is only a loose legislation without any empirical study on the need for such a particular kind of programme. We are working on it....”