From constitution of Benches to women’s rights cases, the formidable lawyer says the apex court can improve

Indira Jaising has many firsts to her credit. The first woman senior advocate to be designated by the Bombay High Court, the first Indian woman to be elected to the U.N. Committee on Elimination of Discrimination against Women, and the first woman to be appointed Additional Solicitor General of India. As one of the most senior lawyers practising in the Supreme Court, she has stayed true to her passion for human rights and Constitutional values. Jaising, who began her career in the labour courts, lends a formidable presence to the flood of gender justice cases reaching the Supreme Court: from the Sabarimala temple entry case to Hadiya’s fight to choose her faith to Goolrokh Gupta’s fight to retain her Parsi identity after marrying outside her religion. She calls herself one of “midnight’s children” and worries whether legal icons of today have failed to leave a worthy legacy for future generations of lawyers. Excerpts from an interview:

Last year and now this one have seen more and more women approach the Supreme Court to assert their rights. Yet the Supreme Court itself has only one woman judge. Is there a need for the court to look within itself?

For me the issue is not about more women in the court, but also how Benches are constituted. Now, we have a Constitution Bench sitting for the last six months and all these women-centric issues are pending before this five-judge Bench. My question is: why is the solitary woman judge (Justice R. Banumathi) not part of this Constitution Bench? Even if there are more women, what is the guarantee they will be assigned work of constitutional importance.

In the triple talaq case, when Chief Justice J.S. Khehar constituted a multi-faith Bench, why was it not multi-gender? There is a critical mass of women in the high courts who can be appointed to the Supreme Court. I have not seen any government pushing the judiciary in its recommendatory capacity to appoint more women judges. There is no White Paper on this subject, there is no policy document. There is a live, kicking and functioning patriarchy in this country that prevents women from breaking the glass ceiling.

Women judges do not constitute a lobby, in a positive sense of advocacy, within the judiciary. I think there should be an association of women judges who should meet, share their concerns, and raise them in judicial forums. Yes, there should be more women judges, but for what? For gender justice! We don’t want more women who don’t know the A,B,Cs of gender justice.

We have seen the Supreme Court hear several cases, especially Hadiya’s, on women’s right to choice. Has the court been floundering, giving short-term solutions in these cases?

Yes, the court has been floundering. The give-away came in the triple talaq judgment. It was a classical case when the SC could have confronted the issue of personal laws being unconstitutional and gender-unjust. They failed the test. Except perhaps Justice Rohinton Nariman (who gave the majority opinion) who said triple talaq violates Article 14. But even he did not mention gender justice. Why does inequality still define our personal laws? Kapil Sibal made a statement in triple talaq hearings, ‘My Lord, the problem is not personal law but patriarchy’. So what is the home of patriarchy? The home of patriarchy is personal law, the home of personal law is religion.

Hadiya’s case is linked to privacy. We have this amazing judgment (upholding the fundamental right to privacy) hailed worldwide. Yet, when it came to the application of this judgment to a concrete situation — the right to marry, which is very much a part of privacy — they have tolerated a situation where a High Court has declared a marriage between two adults as void. The authoritarian attitude towards women has percolated down to the High Court level. The expression ‘love jihad’ was invented in a judgment.

You recently won the case against opacity in senior advocate designation. But was this a mindset problem within the legal community… that certain lawyers with privileges, pedigree and connections were considered. You have said in court that lawyers who fight PILs have not got their due.

This has become a heritable institution. If your father is a senior lawyer, you will become a senior lawyer and your son will become a senior lawyer. Why did a generation of lawyers, who are icons now, not speak up when children of judges and senior lawyers were getting designated?

Some lawyers who take up PILs are as good with their law if not better than commercial law practitioners. When you do PILs, you are challenged because you go against the mainstream of law and we have great legacy in the form of Justice P.N. Bhagwati, who gave us the jurisprudence of PILs. Now not to recognise that contribution is very wrong. In the judgment in my case, making the senior advocate designation process transparent, judges have given points for pro bono work, which I hope would include PIL and legal aid, and give legitimacy to the institution of lawyers who do PIL work. The judgment is significant, you may not see the impact immediately but over a period of time you will see lawyers with merit being designated as seniors.

You have said that one of the most heartbreaking experiences you had was the case of the 10-year-old pregnant rape survivor from Chandigarh.

She was raped by her uncle. Rape is happening within the home. This is an issue we do not want to confront. But if we don’t talk about it to our children, this abuse is going to continue. One solution is to introduce sex education. Second is to reform the medical profession. This 10-year-old knocked at the doors of a medical facility, but was turned away. The excuse often given is that under the Indian Penal Code, we have miscarriage as an offence and these doctors say that if we provide an abortion we will [be prosecuted] for miscarriage. But the law is also clear when it says that a rape survivor has the right to an abortion. There is stigma attached to abortion. Women go to quacks, which compromises their reproductive health. Every one of these issues has to be dealt with if we want to protect our 10-year-olds. The child from Chandigarh represents the face of the failure of the Indian system to confront the issue of sex and sexuality.

The expression ‘love jihad’ was invented in a court judgment — Indira Jaising

Anti-rape laws have become stringent. Death penalty has been introduced. Yet, crimes against women continue as if legislation is not the cure for this menace where the perpetrator is often within the family circles...

I personally feel crimes against women are no longer a question of violence or gender alone. It has become a perversity. We are seeing brutality of a different kind. It came to light in the Nirbhaya case. I think there has been a brutalisation of Indian society and it is very connected with increasing poverty, inequality and communalisation of Indian polity.

Your intervention has seen the setting up of a crèche in the Supreme Court. But many working women are forced to choose motherhood over the fundamental right to employment. Is there a need for more protection for working women?

The women who renounce careers are upper-class women. Let’s talk about the women who work on construction sites. They bring their children to work and expose them. They don’t have the luxury of renouncing careers. They have to work to earn their next meal. They are the ones who need crèches and it is for them the law has to be implemented. It is interesting the Supreme Court did not have a crèche until we took up the issue. Bar Associations did not play a prominent role. The petitioner in my case was Anindita Pujari, my junior. One day she came to court with her two-year-old daughter; the nanny and the child were sitting in the SC lawns. I offered my chamber, but that was not the solution. Anindita agreed to be the petitioner. Her daughter was the inspiration behind the case. The court is now building a crèche inside.

You have asked for live-streaming of proceedings in nationally-important and public interest cases.

Issues like Aadhaar concern the nation. People not present in courtrooms have a right to know in real-time the arguments presented in court. Data from across the world shows that live-streaming of proceedings has not done damage to the courts, but has in fact enhanced their credibility. However, criminal law and family law cases should not be live-streamed because it affects rights and there may be an acquittal later on.

Do you think the joint press conference of the four SC judges has served its purpose?

First, let me talk about the significance of it. These four judges have been criticised for having spoken to the press. There is a distinction between judges talking about their judgments and administrative issues. I agree that judges have no right to talk about judgments. Their code of conduct says judges should not talk about their judgments. However, there is no bar on judges talking about administrative issues. I don’t know where this objection is coming from.

Then let us look at the substance of the issue. To my mind, this press meet is as significant as the events that took place when Mrs. Gandhi superseded three judges and appointed Justice A.N. Ray as the CJI during Emergency. Their subsequent resignation was a moral act against the interference of the executive in the independence of the judiciary. In my opinion, the press conference of the four judges stands on an identical footing. The images of the judges who resigned during Emergency have been etched as heroes, so why are these judges being demonised by the same people? I see the press conference as a milestone in the independence of the judiciary. The tragedy is that the legal profession has not risen to the call of justice. I don’t believe the issue has been satisfactorily concluded. I don’t believe it is over either.

Should the Supreme Court be looking into the facts, records and forensics of Judge Loya’s death? Is it acting like a trial court?

The only threshold we need to cross in the Supreme Court is that of suspicion. We are only asking for the limited relief of setting up an investigation. The actual investigation should be carried out by an investigating agency. Therefore, it is very difficult to understand why this proceeding in the Supreme Court has gone on for so long because in my opinion the threshold of suspicion was crossed long ago.

krishnadas.rajagopal@thehindu.co.in