Abstract: In the early eighties, the courts were willing to play an activist role in fact-finding, in order to test whether rights including fundamental rights, were being violated. Groups such as bonded labour, child labour and undertrials had no means of voicing their own grievances, and hence others would be permitted to do so on their behalf. I was part of this historic process created by the court and was excited by these ideas. My activism in taking up the cause of the homeless pavement—dwellers of Mumbai belongs to this phase of my life. I promptly occupied the democratic space opened up by the courts as I was ready for it. Those were new beginnings for many of us who believed that we were in a profession that had a social function to perform, and was not just another business. While earlier, the court had been dealing with civil rights, it had little or no occasion to deal with social and economic rights. In the post-emergency phase, the Supreme Court of India began to address these too.
Keywords: fundamental rights, bonded labour, child labour, economic rights, public interest litigation, pavement dwellers
I have often been asked the questions: how did you become what you are, how did you excel in a male-dominated profession, how did you come to work on socio-legal issues? I don’t know, perhaps there are no real answers to these questions or perhaps all answers are rationalisations of one’s past. Or perhaps some memory of displacement has always been with me, which propelled me into the fascinating world of activism in law. My family is from Sind, who migrated to India at or about the Partition of 1947. I still have memories of my grandparents’ home in Pakistan and think of it as the home of my childhood days. The horrors of the Partition have escaped me and my memories, but the longing for my ancestral home has not. I sometimes wonder whether this longing is just another form of escapism or a symptom of a real connection with my past. Years later, I visited Pakistan, a step which I alone in my family took — the older members of my family had no desire to do so — and remember the wonder that I felt when I heard people in government offices, the visa officer, the police house officer speak to each other and to me in Sindhi. For the first time I realised that the language into which I was born was actually spoken by a majority community in some part of the world. In India, from childhood, I was aware of the fact that in a country divided into linguistic states, the language I spoke at home had no state. It made me feel stateless. This feeling has been with me since my days at school and I tend to think that in some ways it has given me a certain rootless freedom — of mobility and identity, an identity which I created for myself. I know that generations that came after me in my own family do not feel the same way, nor do they have the same memories. Perhaps I carry the legacy of midnight’s children. For the rest, my childhood was uneventful, born as I was into a family of businessmen accustomed to travelling from the port of Karachi to the port of Bombay.
Like all girl children in Sindhi families, I was expected to marry early in life, procreate and settle down. I did neither. (I married much later in life after I felt I had acquired a certain level of independence and autonomy in my career). No sooner did my parents try to marry me off, than the question of dowry arose. I distinctly remember my proposed parents-in-law negotiating dowry with my parents. I was horrified. We lived in a joint family and I had seen my cousins getting married with negotiated dowries and the consequent disputes in the respective families. The institution of dowry was well entrenched in the Sindhi community, nobody questioned it. My parents thought it was natural, and even said so to me as justification for negotiating. So widespread was the evil in Sind, that Sind had its own Anti-Dowry Act long before the Act of 1961. The community seemed to have carried its most backward traditions into India after the Partition, but I knew that this was not the life for me.
My refusal to be bartered away in marriage gave me a sense of self-worth. The life option of an early marriage and childbearing having been ruled out, a career was what I wanted, the ability to work and earn my own living. I pursued that option, and chose to be in law. Not having any lawyers in the family once again gave me the freedom and ability to invent myself. I do believe that I owe a large part of my ‘success’ to the fact that I had no one in the family who practised law and so I could choose my own role models. But I found none. Again, I had to invent my own, which I proceeded to do. Having lived in the twentieth and twenty-first centuries as we have done, I have seen three generations of families of lawyers, from father to son to grandson — but never mother to daughter (or father to daughter) to granddaughter. I have seen the transformation of law from being a profession to becoming a family business; what is more, I have seen members of the same family become judges, fathers to sons. It is almost as if I have seen the office of a judge become a hereditary office! I used to wonder how, in a democracy, such a phenomenon could exist. My good fortune (again related to the fact that I had no lawyers in my family) allowed me to escape that trap and look at the situation objectively and critically.
At the time when I entered the profession, it had a sense of stability about it. It was looking for no changes. Inherited legal practices from the British colonial regime seemed to be the only way to do law. The entire process of development, in the legal profession, was one which excelled in perfecting the tools and techniques and procedures left by the British. The prime purpose of the Advocates Act., for example, was to create one category of lawyers, doing away with all other types of indigenous practitioners. Unthinkingly, we accepted the oneness of the profession, without pausing to wonder whether it could serve the needs of the vast majority of the people of the country in that static form. Those were days when the courts, particularly the high courts and the Supreme Court, were unaware of their constitutional function and saw the judiciary as nothing more than a forum for resolving disputes.
I struggled to find ways and means of making my work relevant, not only for myself but also for others. Fortunately, I was exposed to activist ways of achieving social goals through a fellowship at the Institute of Advanced Legal Studies in London, where I met several people who were engaged with law in a mission which was larger than themselves. This was in the mid-sixties, a time of intense activism around the world.
It took an event as traumatic as the Emergency which was declared in 1975 to polarise Indian society and make all of us take a stand on which political side we stood. I chose to oppose the Emergency and worked with many others who resisted the suspension of all civil and political rights. This represented a turning point in my life and, I think, in the life of the judiciary as well. I saw it crumbling before the might of political power before my very eyes. Justice Chandrachud’s now famous quote that he had a ‘diamond bright, diamond hard’ hope that the state would treat its detenus as it would its own children, had devastating consequences for the country. He and all the other judges who agreed with him betrayed the very people they were meant to protect.
It was during the Emergency that the idea grew in the minds of some of us who were opposing it, that we needed to put together an organisation of lawyers which would serve activists in the trade unions who were being arrested and repressed. We created the Workers’ Law Centre. Since the railway strike was the immediate provocation for the Emergency, we became involved in providing legal services to the dismissed and victimised railway and other workers. That Centre was the forerunner of the Lawyers’ Collective which was founded in 1980 with similar aims and goals, except that it extended its reach to other sections of society including women, children and under-trials. In 1986 the lawyers commenced publication of the first monthly law magazine in the country. Its aim as mentioned in the first editorial was, to break the culture of silence’ that exists around the judiciary, to provide legal literature in readable language to those who need it most, and to address the legal problems of the dispossessed sections of society. The magazine continues to be published on a monthly basis to this day, and its aims remain the same. The Lawyers’ Collective itself has undergone several transformations and has been a role model for other organisations; it has a women’s rights project, an HIV/AIDS project and a human rights cell, but like most of them it does face a crisis of leadership, a challenge which we are struggling to meet. Lawyers by training are individualistic, not particularly suited to the task of institution building. The Lawyers’ Collective has not been immune to this shortcoming. It is a constant struggle to find solutions to the problem of sustainability. Today the organisation is involved in providing legal aid and advocacy within the constituencies that are concerned with the groups we service, and with law reform. An example of the latter is our campaign for the introduction of a law on domestic violence. As of now, the cabinet of the central government has taken a decision to introduce a civil law on domestic violence. This is not the place to document the campaign but it represents an attempt at interviewing at the policy level rather than addressing individual cases alone. These activities have meant having to work out a new equation of engagement with the state without losing autonomy.
After the Emergency was politically revoked, the judiciary set out on a different path. It began to create democratic spaces within which the voices of the excluded could be heard. It invented public interest litigation, within whose framework issues relating to the violations of the fundamental rights of citizens could be raised. While in the early days Justice P.N. Bhagwati attempted to articulate the theoretical basis of public interest litigation, that attempt has now been abandoned. It was Justice Bhagawati who said that public interest litigation was required because the British model of adversarial justice was unsuited to Indian conditions. He said that the adversarial system presupposed a high degree of knowledge and information about one’s rights. It was based on ‘self-identification of injury and self-selection of remedy.’ In a country such as India, this option was not open to the vast majority of people due to conditions of illiteracy and poverty. It was therefore necessary to permit civil society to intervene, in the public interest, on behalf of those whose rights were being violated. I have, however, seen the disappearance of this phase of the nation’s history as well. It is a pity that the rationale behind public interest litigation was never taken to its logical conclusion. That would have required a complete dismantling of the legacy of colonialism in law, which did not happen; as a result, today public interest litigation has been hijacked by the middle classes who can operate the levers of the court better than the working classes. Judges too did not understand and imbibe the jurisprudential basis of PIL, and hence have been too willing to open the doors of the court to the upper classes to use PM as a tool to attain narrow partisan objectives.
In the early eighties, the courts were willing to play an activist role in fact-finding, in order to test whether rights including fundamental rights, were being violated. Groups such as bonded labour, child labour and undertrials had no means of voicing their own grievances, and hence others would be permitted to do so on their behalf. I was part of this historic process created by the court and was excited by these ideas. My activism in taking up the cause of the homeless pavement—dwellers of Mumbai belongs to this phase of my life. I promptly occupied the democratic space opened up by the courts as I was ready for it. Those were new beginnings for many of us who believed that we were in a profession that had a social function to perform, and was not just another business. While earlier, the court had been dealing with civil rights, it had little or no occasion to deal with social and economic rights. In the post-emergency phase, the Supreme Court of India began to address these too.
I began to work on my chosen subjects with great passion. Women and their problems in the field of family law had always been a matter of concern to me in my practice. The Constitutional right to equality could now be taken seriously by the courts. The rights of undertrials, of bonded and child labour and of pavement-dwellers all took birth during this phase. This is neither the time nor the space to discuss the pros and cons of that phase; what I am suggesting is that the courts became accessible to people who were dispossessed and, in the process, many like me who felt that there was no place for us in the judicial system found ourselves included in the adventure of building a democratic and just legal culture.
Those were exhilarating times. We were engaged in the process of writing the history of the court. We were exposed to great judges. But there was also always a nagging fact present: the knowledge that the same judges who were now writing brilliant judgements in defence of human rights, were the very ones who wrote the judgements during the Emergency. I could never therefore put in faith entirely in the judiciary. That was perhaps a good thing because it gave me a sense of perspective about my own role in it. It gave me autonomy and a real independence from the system of spoils and patronage which exists to this day in the legal profession. It enabled me to keep my distance from people in positions of power. As a result, I never chose to seek public office and maintained my role as the ‘outsider’ very comfortably, with all its attendant advantages.
My women clients have influenced me immensely. Mary Roy refused to succumb to an unfair legal regime applicable to Syrian Christians in the state of Kerala, by virtue of which daughters were virtually disinherited in favour of their brothers. Equality for her, as for many other women, was a felt need. She had returned to her ancestral home after the breakdown of her marriage and was told that she. had no rights to the property. Armed only with an unshakeable belief in equality she approached the Supreme Court for justice. It was then that I met her and together we worked for making the right to equality a reality for her. We succeeded in getting a judgement which made a more equal law applicable to her, under which she would inherit equally with her other siblings. Mary Roy taught me the power of the constitutionally guaranteed right to equality, but her battle did not end with the judgement. I do not think that Mary Roy has to this day benefited from it but she knows that several other women, similarly situated, have. P.K. Saru was one of the first Muslim women to question the Muslim Women’s (Protection of Rights on Divorce) Act, 1986 and I had the privilege of representing her. She too succeeded in getting a judgement that, as a divorced Muslim woman, she was entitled to ‘reasonable and fair provision and maintenance’ and not just maintenance for the iddat period. What she and Mary Roy had in common was the ability to say ‘No’ to an unjust law. Years later, Githa Hariharan and Vandana Shiva, both in their different ways, rejected the idea that the father was the ‘natural guardian’ of his children under Hindu Law and insisted on questioning it. Vandana Shiva maintained that the law made an unjust division between rights and responsibilities, giving rights to the man and responsibilities to the woman. These women, belonging to different faiths, all raised issues that were of national concern to women and each, in different ways, taught me that the women of this country have the tenacity and the passion to stand up for their rights.
It was the Bhopal gas leak disaster that brought me to Delhi to establish residence there, in order to attend its daily hearings. This city has come to represent the final goal of successful lawyers. The Supreme Court of India is perhaps the most powerful court in the world: it has the power to make and unmake not only laws but also the Constitution itself. It decides what the basic features of the Constitution are, who should be unseated from public office, what the rights of women are, how cities should be kept clean and pollution reduced, how dams should be built or forests preserved; as well as making education a fundamental right. Most successful lawyers have shifted to Delhi through obtaining public office such as attorney general or solicitor-general or by becoming MPs. The connection between lawyers and politics has always been very close, but in my case neither of these known routes brought me to Delhi; rather it was Union Carbide. Since 1985 1 had been travelling to Bhopal for the legal proceedings that were a fall-out of that disaster, and in 1989 the challenge to the Bhopal Gas Leak Disaster Act was being heard in the Supreme Court. This meant that I had to take a decision about my continued presence in the city; the course of my life has usually followed the course of my work.
I have often been asked, mostly by women lawyers, ‘How have you survived in this male dominated profession? The answer, I think, lies in the kinds of issues I have been agitating for in the courts. Of necessity, the disinherited people I represent have no option but to approach a court of law to vindicate their rights. I sometimes hear arguments to the effect that women’s or other democratic movements should not approach the courts but fight our battles in other forums. To them my reply is, the rich and the rights-enabled do not need the law, it is only the excluded who need it because they have no other weapon to fight their battles with. In that sense, and that sense alone, does the rule of law have any meaning for me. Survival in a male-dominated profession requires that you do not become a cynic as cynicism would result in dropping out. I have managed to avoid it through belief in th’e rule of law. Survival and success both depended on my remaining and believing in my outsider role, as an activist, and as a woman. In a curious sense I owe my success to being a woman in a male-dominated profession.
The court I work in today is not the same as the post-Emergency court. We live in an era of globalisation and liberalisation and I cannot help thinking that these issues have affected judicial behaviour_ There was a time when one could hear arguments in court based on the directive principles of state policy, and on the building of a welfare state, the nationalisation of scarce resources, a redistribution of material resources, creating just and humane conditions of work and addressing the needs of those who are victims of ‘undeserved want’ — a beautiful expression borrowed from the Constitution. Today, you would be laughed at in court if you referred to these principles. Today, there is an unwritten change in the directive principles of state policy; now ‘disinvestment’ `liberalisation’ and globalisation’ are the new mantras of the nation and the judiciary. Their implications are devastating. While arguing for the abolition of contract labour who work in conditions akin to slave labour, I have heard arguments to the effect that the compulsions of liberalisation and the need to attract foreign investment require that contract labour be employed. While dealing with a case relating to the duty of the municipal corporation to clean cities, I have heard it argued that the reason why scavengers are not doing their job is that they are protected by the Prevention of Atrocities against Scheduled Caste and Tribes Act, and that if we want our cities cleaned we Must repeal this Act. The argument goes that if you call a scavenger by his Caste name, you will be prosecuted under the Act: therefore repeal the Act to enable us to keep cities clean. It seems that liberalisation and casteism go hand-in-hand in court.
The challenges presented to the courts today are not confined to issues relating to child labour and bonded labour; even when they are, they can no Longer be addressed in welfare terms — they will have to be addressed politically. They range from challenging Monsanto for releasing genetic material in the environment without a procedure for testing, to questioning the building of the Sardar Sarovar darn: they include issues relating to the signing of the TRIPS treaty: the introduction of patenting drugs and putting them gut of the reach of ordinary people. Public health will become a matter of great concern. Issues also include challenging the surrender of national sovereignty of multinational agencies such as WTO and the World Bank. My activism and the relationships I have built with some of the women I have represented have helped me to understand the complexities of these issues. Judges are generally not equipped to deal with them – often, they take the easy way out, dealing with the issue politically or on the basis of their own pronounced biases. It is a frustrating Supreme Court to be in, but that is what keeps me going. There is never a time when I can say my work is done.
As I approach the end of a fulfilling career, I reflect on my own `achievements’ or lack of them. I have been a product of my times. My freedom came from the fact that I did not have any role models and was free to create my own. The odds were against me. I was a woman in a male-dominated world; I chose to represent those who had no legitimacy in society and that lack of legitimacy rubbed off onto me. We were the outcastes of the profession. But as I look back on my own life, I believe that my status as an outcaste made me fight for a place in the profession, and it has been a successful fight. History was on my side. I found myself with a small band of lawyers who were relevant to our times, and together we built a tradition of democratic lawyering which we hope will endure. It will not be the same as in the ‘80s because that phase in the history of the nation is over. The lawyers of the current century, if they wish to survive in the tradition of democracy, will have to be political animals because the challenges are political.
There was a time, a few years ago, when I thought that my personal journey was done. I now realise that there is never a time when I will be able to say that. I yearn to do the things I love that I did not do over the years: go bird watching, build friendships and meaningful relationships, and spend time with parents and family. I realise that law has been my first love, not just my profession, and the need to protest the degeneration in the system and the profession continues to engage me. I have to find a way to build my fun times into my life.
Have I been discriminated against? Yes, but that can never be an excuse for not achieving my agenda. I have succeeded despite the discrimination — I simply ignored it and carried on.
INDIRA JAISING. Distinguished lawyer of the Supreme Court of India. Takes special interest in cases related to injustice towards women. A pioneer who started the campaign for women’s legal rights in the country. Awarded fellowship of the Institue of Advanced Legal Studies London. Has been a visiting Scholar at the Columbia University New York. Over the years she has fought against child labour, for the economic rights of women and estranged wives. Conferred the Rotary Manav Seva Award in the recognition of her services in fighting corruption.