In a recent conversation, Senior Advocate Indira Jaising voiced her opinion on, inter alia, the split verdict of the Delhi High Court on marital rape, the 2021 IT Rules for Intermediaries and Digital Media, senior designations by High Courts.
The following are excerpts from the discussion as it transpired on the online show 'Behind the Bar'-
[Delhi High Court marital rape split verdict] 'Highly misogynistic and very, very problematic that any judge could proceed to decide case on an understanding of a woman as being the property of husband'- Ms. Jaising
Ms. Jaising was asked about her opinion on the recent delivering of a split verdict by the Delhi High Court on pleas seeking criminalisation of marital rape, where Justice C. Hari Shankar, upholding the constitutional validity of marital rape exception (exception 2 to Section 375 of the Indian Penal Code), held that there is no inherent fundamental right in the wife to have her husband convicted for rape, relatable to Article 21, 19 or any other Article in the Constitution. It was observed that the assumption that a wife forced to have sex with husband feels the same degree of outrage as a woman raped by a stranger is unrealistic. While saying there can be no compromise on sexual autonomy of women or the right of a woman to sexual and reproductive choice, Justice Shankar did not accept the argument that in treating sexual acts between a husband and wife, whether consensual or non-consensual, differently from non-consensual sexual acts between a man and woman not bound to each other by marriage, the legislature acted unconstitutionally.
Ms. Jaising: "I just handled a case in the Supreme Court of India three days ago where a district court in Karnataka had framed charges for rape at the instance of the wife against the husband. It was a huge step forward. It was challenged in the High Court by the husband. The High Court gave a very interesting judgment upholding the framing of the charge. Of course, the husband came to the Supreme Court and it came before the bench of the learned Chief Justice N. V. Ramana and Justices Suryakant and Hima Kohli. While they agreed to hear the case, they refused to stay the framing of charges. It becomes the first case in the country where on the complaint of the wife, a husband will be prosecuted for rape. Why is it a significant judgment? Because it recognises that the wife can complain about unwanted sex from your husband. The case succeeded because this was not a public interest petition, she was a real woman in a real situation who came to court and said that this is what my husband does to me. She described some acts which would amount to forcible sex, forcible anal sex, forcible oral sex. She invoked 376 and 377 (of the IPC) and the charges are framed for both. It is interesting because in my opinion, it demolishes the entire theory set up more than three centuries ago based on English common law that by marriage, a woman gives up her right to bodily autonomy. It is said that the common law of England was that, by virtue of marriage, she consented to have sex with her husband. I have never been able to understand that. The word 'Marital Rape' does not appear anywhere in the IPC. The question I am raising is that let us assume that a woman consents on marriage to have sex, that is stating the obvious, but the question is does she consent to violent sex? All force is violence. Does she consent to brutal sex? In the facts of this case, the judge records that the wife complained that she was treated like a sex slave. Here, the court distinguishes between theory and practice. In practice, the woman was treated brutally and violently, and I take the view that regardless of the exception, no woman consents to this form of sex"
Ms. Jaising: "As regards the Delhi High Court judgment, there is no judgment, it is a non-judgment. When two judges differ, there is no judgment. Ordinarily. it will have to be referred to a three-judge bench and then you can say that this is the minority opinion or the majority opinion. Nevertheless, the fact that one of the judges upheld this amendment is unfortunate, to say the least. He goes back three centuries to the common law. He was unable to distinguish between common law and the coming into force of the Indian constitution and what it means for every citizen of the country including women. Women are not claiming any rights higher than others. There is a failure on the part of the judge to understand that there is a break with colonialism, a break with common law and that he is not obliged to follow the common law. Apart from that, it is highly misogynistic and very, very problematic that any judge could proceed to decide a case on the understanding of a woman as being the property of the husband. In fact, in common law, a woman loses her personality, her legal personality, she is not considered a person in law, her identity is merged with that of her husband under the doctrine of coverture. How does this square with the Constitution that recognises each one of us as citizens having the right to equality? You cannot say that you lose your right to equality when you become a wife...Just because a judgment has been written, it has to be reversed. Otherwise, I would say it is a non-judgment. But it is written, it is there in black and white...I hope a higher court will reverse it"
[2021 IT Rules] 'Current legal framework put in place by the government gives them the power to completely throttle the media and to chill it'- Ms. Jaising
Ms. Jaising was about the role of the media as the fourth pillar of democracy so far as governance in the country is concerned.
Ms. Jaising: "I am a great believer in the power of the media and this is the reason, way back in 1986, the Lawyers Collective had started a printed issue of the magazine. Every law student in those days was reading that magazine. It tells you about the power of the media. Communication of law is not only dependent on what is said in court, it is also dependent on what you write, defence of human rights takes place through the media as much as it does through protest and organisation. Then of course, the digital era came and it became unaffordable to publish a print magazine. But we did start a digital magazine called 'The Leaflet'. The focus of 'The Leaflet' is to generate intellectual opinion which is critical of development in the legal domain. Again, it is meant to demolish this culture of sycophancy which you see amongst lawyers, this tendency to say 'Haanji, Haanji' to judges. For a lawyer, a judge can never be wrong and you need to agree to everything that the judge says. That is not true for academics. Academics are willing to criticise- criticism in a very healthy manner, constructive criticism of judgments, of legal development, of laws. This was the basis on which 'The Leaflet' was started and it is still running. You then get rules made by the Union of India under the IT Act where the government then begins to assume the power to tell you that this article should be brought down. From where do they get the power of censorship? Yes, there are laws in this country- assume if an article is defamatory, action can be taken against you, assume you have said something which is causing communal disharmony, action can be taken against you. Where do they get this power to tell you to actually pull down the article? The Leaflet challenged this in the High Court of Bombay. You have an order that says it cannot be done. There are appeals pending in the Supreme Court. The court will decide what to do. So when you talk of the media, the current legal framework put in place by the government gives them the power to completely throttle the media and to chill it. As a consequence, the media is more than willing to comply with anything the government wants it to. So it is a very difficult situation in terms of whether you need a vibrant media- no democracy can do without it, you have seen the International Press Freedom Indexes, Democracy Index of what is going on in the country...these are all political matters which have to be resolved at the political level..."
[Lawyers Collective case] 'We are facing extreme form of victimisation from prosecuting agencies; Suddenly, civil society is being seen as enemy of State'- Ms. Jaising
Ms. Jaising was asked how the idea for an organisation like the NGO Lawyers Collective came to her mind, and why she thinks the allegations were made against the body.
A 2019 CBI FIR alleged that the NGO "was registered for carrying out social activities and had received foreign contributionamounting to Rs 32.39 crore between 2006-07 to 2014-15, but money was used for political purposes". On November 27, 2011, the NGO's FCRA registration was cancelled and decision was taken to freeze all their bank accounts. Following the registration of FIR, the CBI had carried out raids in the offices and residences of Senior Advocates Anand Grover and Ms. Jaising, the NGO's founders. The FIR was registered after the Supreme Court issued notice in a PIL filed by an NGO named 'Lawyers Voice' demanding probe against Lawyers Collective. Soon after the CJI-led bench issued notice in the PIL, Ms. Jaising issued a statement suggesting that she was being targeted for demanding due enquiry process in the sexual harassment allegations against the CJI Ranjan Gogoi.
Ms. Jaising: "Remember this goes back to 1981. That was a time when there was no functioning legal aid system in the country. Although the legal services authority act was passed way back in 1976, the act was still not in force. The Constitution was also amended to include article 39A which gives you the right to legal aid but on the ground there was nothing. A group of us got together and decided that let us form the lawyers collective, let us learn how to work collectively, lawyers don't know how to work collectively except the Law Firms. Lawyers collective was not a law firm, it was a society consisting of lawyers and law students and the purpose was- we said it in the constitution of the lawyers collective- that the Constitution itself says that there are victims of undeserved want in this country and they need to be serviced by the legal aid profession. That was the basis on which it was set up. It was also very prior to the period when public interest litigation grew. We in the lawyers collective took up the Olga Telis case of the homeless pavement dwellers of Mumbai and we had a spectacular judgment authored by Justice Y. V. Chandrachud, of a bench of five judges. We also did the Bombay hawkers union case where for the first time, hawkers were accepted as being bearers of rights., Right to livelihood was evolved in both of these judgments. I am happy to say that this lawyers collective continues till today. It has undergone several changes- somewhere down the line in the mid-90s, we had applied for funding under FCRA, we got it and we have some major achievements, such as, we at the lawyers collective drafted in a consultative manner the protection of women from domestic violence act which became a law in 2005. Anand Grover who is my partner and founding member of the lawyers collective, he and his team again through a highly consultative process drafted the first and only antidiscrimination law of this country, a law which prevents discrimination against people who are living with HIV. Things are different today. You probably know that in 2019, in a public interest petition filed at the Supreme Court of India there was an order saying that alleged wrongs that we had indulged in should be investigated by investigating agencies. There was a regime change in 2014 as you know. I was appointed additional solicitor general under the UPA government. Things changed dramatically and the Ministry of home affairs directed the CBI to conduct an investigation against us. Today, we are facing an extreme form of victimisation from the prosecuting agencies, but I am proud to say that the work of the lawyers collective goes on, it doesn't stop, we have no intention of giving up on the work regardless of what happens to me or to other members of the lawyers collective. The work will go on"
When asked about the reason behind this, the Senior Advocate said, "I have already told you the reason. It is not just happening to me, it has happened to many other people, it has happened to many other members of civil society. Suddenly, civil society is being seen as an enemy of the State. I am sitting here in front of you, I wonder if you think I am an enemy of the State. I am as conservative in functioning in a constitutional framework- my daily work is to go to court and come back- so how can going to court and coming back make you an enemy of the State?"
On the topics that they are touching today through the medium of lawyers collective, she replied, "A variety. I continue to maintain my interest in women's issues. I argued the Sabarimala case. I appeared in the triple talaq case. There is the Goolrokh Gupta case before the Supreme Court on what happens to a Parsi woman who marries a non-Parsi- here, she was told that she cannot attend her father's funeral. Thank God, her father is still alive. In an act of statesmanship, the then-CJI Dipak Misra persuaded the Panchayat to allow them to attend in the event of the death of the parents but it is a very important legal issue. The High Court of Gujarat had held that when a woman once she gets married, she takes on the religion of her husband which is to say the least legally unacceptable. It goes back to the idea of if I am an individual autonomous or if you give up your autonomy when you get married. There is the Female Genital Mutilation case- women from the Dawoodi Borah community are asking for abolishing of FGM. Apart from this, my interest in civil liberties has led me to defend some of the people who have been arrested in the Bhima Koregaon case. There is ongoing litigation where we represented Dr Varavara Rao, he got medical bail on the ground that right to health is a fundamental right. This is a very exciting profession because everyday, there is an issue that you are confronted with. The question is whether you can see the injustice in front of your eyes, and if you have the desire to fight injustice, there will never be a day in your life when you will not have work"
[Designation as Senior Advocates] 'In complete disagreement with the point of view that senior designation is an honour conferred on the lawyers'- Ms. Jaising
On being the first woman to be designated a senior advocate by the Bombay High Court, Ms. Jaising said, "I was designated almost by invitation. I did not really seek it. While I was arguing in the High Court, several people were probably observing my performance. And you will be surprised to know that the person who actually recommended that I should be designated was the then advocate general of Maharashtra. The interesting thing is that I did not know him, I don't have any family in the legal profession, he was nothing more than a professional colleague. But I found myself very often appearing against him in court, in particular when I was representing the employees of Air India and he was representing Air India constantly in court. So there was this constant situation where we were very, very sharply on different sides of the line with each other. I suppose he must have noticed that my performance was something that met with certain standards of the requirements of a senior counsel"
As regards her view on the designation of senior lawyers today in the Supreme Court, she remarked, "I think the legal profession is male-dominated and it is chauvinistic and misogynistic. But the legal profession is also very hierarchical. Similarly, so is the judiciary. The profession has become a hereditary profession. We talk of the dynasty in politics, there is also Dynasty in the legal profession. This is something which I have wanted to resist all my life. Don't forget, I come from a family where nobody is in the legal profession, so it was a hard slog for me to be able to do anything in the legal profession with no backing, no godfather, no Godmother, no nothing. I then took a decision that this has to change and this is when I decided to file a petition in the Supreme Court of India saying that it is just not good enough what the court is doing. I actually said what are you doing, you sit in the full court and you vote? What is voting all about? And I compared it to what would happen if there is a beauty contest- You cast your vote based on what? Beauty lies in the eyes of the beholder. You say that according to me, this is the most beautiful person and then you cast your vote. I said this cannot be the base when it comes to deciding on merit. I questioned the whole object and purpose of designation as a senior. Because you want a certain standard of competence, merit and skill at the bar. You want the court to get the assistance of people who are learned in the law, you want a litigant to get the assistance of such a person and for that reason you recognise a person as a senior. Therefore, how are you going to go about it? Look at their performance, look at the cases in which they have appeared, how many juniors have they mentored, contribution to public life, articles written, books published, the service that they have done to the professional pro bono, don't look at how much money they are earning because you can have people with all these qualities but yet they would not be earning the huge amount of money. It is an irrelevant factor even if they are. Fortunately, the Supreme Court accepted some of these arguments and laid down a procedure for designation of seniors. Now the problem is that despite this, there has been a lot of discontent in the way in which the system has been operationalised at different high courts. Not so much at the Supreme Court- The Supreme Court designations have gone through. Yes, there will be a few individuals who will feel aggrieved and that can be taken care of. But in the High Court, whether it was Delhi, Punjab and Haryana, Odisha, Kerala- there have been very major problems. What I found is that some of these high courts, despite the judgment of the Supreme Court, have started resorting to voting. I don't understand the purpose of giving marks then? They are giving marks and then they are voting. There is an irreconcilable conflict between taking a decision based on marks, which shows the person has merit, and then taking a decision based on voting. The consequence then being that the people who got the required number of marks have not been designated because people have voted against them in the full court. It is completely unacceptable. On top of it all, at the last date, when this matter was heard in court, the SG said that he disagrees with the entire system put in place by the court. He said, and some people appear to think so, that it is an honour being conferred on you. I am in complete disagreement with this point of view. First of all, the Constitution of India says all titles are abolished. Secondly, you are dealing with a profession. You are not dealing with a Dynasty, you are not dealing with imperialism or colonialism that somebody is conferring an honour on you. The only honour the Constitution recognises is the Padma Shri. Are you saying that they are giving you a Padma Shri for being a senior counsel? It does not make any sense to me. The journey to democratise in the bar has just begun. Apart from all this, I also feel there are serious limitations to the way in which the system has evolved- you talk about merit, you talk about competence but merit and competence also belong only to those who are already privileged. What has this profession done to encourage those who do not come from privilege, what has this profession done for first generation lawyers, people belonging to SC, ST or other disadvantaged communities? Nothing at all. So I am very happy that I started questioning the system and moving forward. One thing I am very very keen on is regardless of what system the judges put in place, I think this ridiculous distinction between the kind of gown a senior wears and the gown which a Junior wears has to be done away with. I think you abolish the gown completely or you say that all of you wear the same town. Why do we tolerate these outward symbols of discrimination? It is very hurtful, painful to watch that. In a profession which swears by the Constitution of India, it is not acceptable"
On whether the judiciary today is more gender sensitised
Ms. Jaising: "It is not possible to make a sweeping statement. The fact is that yes, thanks to the women's movement, and thanks to progressive jurors in this country, all this has had a definite impact on the judiciary. Women lawyers have started referring to international commitments and CEDAW and it is an idea which slowly seeps into an institution which is otherwise male dominated. And with that male domination come male chauvinism and misogyny. It is a huge challenge. I don't think we are anywhere close to getting rid of chauvinism and misogyny from the legal profession or from the judiciary, but as I said it is the little drops which do emerge from the judgments of the court when we can say that there is hope for a jurisprudential check"
Discussing the 1995 Rupan Deol Bajaj sexual harassment case, where Ms. Jaising has represented the petitioner, she said, "It was the first case. She was a very principled woman and a woman who was sticking to her point. She insisted that what happened to her was unacceptable and she knew that she was fighting against very powerful people, namely, the late Mr K. P. S. Gill. The most significant thing about that case is that most people would have ignored the incident and passed it of as something that 'alright, such things happens to people'. In court, when I was arguing, Mr. K. T. S. Tulsi was representing K. P. S. Gill. He said it is nothing more than a pat on the back. What Mr. Gill had done was to run his hands over her bottom. For me, this was a gross act of sexual harassment as it happened against the will, without her consent and it happened in the public place which made it worse because everybody was there. What she said to me was that she was supposed to be a woman in a position of authority, that the many, many men who were working in positions subordinate to her, if she had tolerated this coming from K. P. S. Gill, there would hardly be any doubt that all the men who were working under her, who were reporting to her would have thought that she is fair game. And I was delighted to represent her because she would not succumb to pressure. She was told that K. P. S. Gill as a person has a huge contribution to the country by getting rid of terrorism from Punjab. He is a hero. Editorials were written about the fact that how can you complain about the man who is a hero, and what is it but a pat on the back. Mr. Tulsi also argued on the doctrine of de minimis, that the harm caused is so small that no reasonable person would complain. These are the things I wanted to contest, I wanted to demonstrate to the court that this is not a minimal harm, it is a very serious harm , bodily autonomy has to be respected, you have to draw boundaries around yourself, nobody has the right to cross over those boundaries"
On the system of administration of justice in the country today, and if the fundamental condition of separation of powers is being maintained
Ms. Jaising: "Let us stick to the judiciary instead of getting into separation of powers. The situation is alarming because the system is top-heavy. The focus is on the Supreme Court of India. If we invest in training our magistrates, our second rank judges, you would not have so much litigation coming up to the higher courts. The first question to address is that. And then people talk about the pendency of cases, recently there was a report that 42 million cases are pending in courts. But it is not enough to say that the cause of pendency is not enough judges.The point is that the judges that you have, are they working in the way they are supposed to work? Who has done the study of that? No one. You might come to the conclusion that the judges that we have are not working in the manner...the quality of work, the quantity of work is missing. The reason is we don't pay attention to the lower rungs of the judiciary, attention is focused on the High Courts and the Supreme Court On the question of separation of powers, there has been an alarming trend that although the collegium of the Supreme Court has recommended appointments of several people, we have seen government exercising pocket weighters. This is something which goes against the theory of separation of powers because if we say we live under a system that the judiciary alone would decide who should become a judge, then what is the role of the government in vetoing appointments recommended by the judiciary?"
Message for the youth and aspiring lawyers in the country
Ms. Jaising: "There is a very good development and that is after many, many years, you see the emergence of very good young lawyers who are working for human rights. There was a period where the legal profession was completely taken over by conservative lawyers, the only thing you would hear in the court would be which company sold its shares, which mergers and acquisitions took place and what was happening in the field of commercial law. That was the absolute priority in the field of law. That is changing now. It is changing now because now there is a vibrant group of young lawyers who have come forward and provided competent legal services. It has happened in the case of Delhi riots, lots of lawyers have been representing people who are being charged of crime, it is happening in the case of Bhima Koregaon, yesterday you saw the Supreme Court gave an interim order on the issue of sedition. It is happening mainly because of the emergence of a vibrant human rights bar. I don't need to give them any advice. They are doing quite well"
Video Courtesy : SILF
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