Envisaging Feminist Lawyering in the Indian Context

Adv. Dr. Shalu Nigam

Much is being written about feminist lawyering in the West; however, this work examines this idea in the Indian context, its elements, dimensions, challenges one may face, and the way it is being practiced. While reflecting on case laws and activism, this work suggests that

  1. Feminist lawyering in a profoundly hierarchical society is a much broader concept than that of traditional lawyering, where a lawyer works not to win the case’ but aims at the larger goals of eliminating inequalities, contesting patriarchy, challenging sexist stereotypes, and addressing structural and systemic conditions that perpetuate male-domination.
  2. Feminist lawyering demands affirmative actions besides survivor-centric or victim-centric justice, which entails understanding the situation using the intersectionality paradigm.
  3. The purpose of feminist lawyering is to negotiate and contest women’s rights at various levels, where the lawyers strive to transform the androcentric systems to enforce the constitutional provisions of equality, liberty, and social justice.
  4. Feminist lawyering questions the unjust norms within and outside the courtrooms, asking the legal system, courts, and society to be sensitive about gender concerns. It passionately demands the enforcement of the citizenship rights of half of humanity.

What is feminist lawyering and why is it required?

Feminist lawyering sees law as an instrument to challenges deeply embedded inequalities, including patriarchy, elitism, class-based discrimination, communalism, exclusion, misogyny, and sexism. It is a practice that supports the disadvantaged and demands for enacting such laws and policies that promote the representation of feminist voices in public and political space. Feminist lawyering is about examining the problem through the lens ofmultiple consciousness’2 and scrutinizing the lived experiences of women through the lens of racism, casteism, and religious biases. As legal theorists and activists, feminist lawyers evoke intersectional theory to reshape the idea of justice sifted through people’s anger, pain, their daily lives, and histories. It rethinks justice as concrete reality filtered through the substantive mesh to address oppression.

Cahn3 noted that “engaging in feminist litigation involves feminist lawyering on feminist issues.” In a patriarchal society, feminist litigation involves dealing with the larger interconnected issues which are essential to meet broader feminist visions. Feminist lawyers, as reformers, are not only concerned about the outcomes of the litigation, but they seek to alter the unfair systems. They question the unjust norms within and outside the courtrooms, asking the law, courts, and society to be humane and gender sensitive. Feminist lawyering is based on a collaborative, multi-disciplinary approach that searches for creative ways to challenge intensely entrenched structural discrimination. It broadly sifts the concrete realities of women’s lives through the framework of substantive justice to address oppression.

The purpose of feminist lawyering is to dismantle social hierarchies and eliminate inequalities by critically examining the way domination works. Moreover, the law as a space to challenge domination has been occupied by privileged men for ages. A few men occupy the position of authority and make laws and policies for women, implement rules, and execute the law without creating space for women to decide for themselves4 . To overcome these discrepancies, women, as citizens, lawyers, judges, activists, and women’s organizations, are demanding justice and equality. For decades, feminist lawyering has challenged this male-dominated, elite paradigm to create a space that facilitates access to justice for all by deploying a feminist understanding.

In the West, several theories have been propounded by feminist theorists to draw linkages
between feminist law-making, legal theory, and the profession to show how these are interrelated and the way these are making an impact on how law is practiced5. Four major schools of legal theory have evolved over the years. These include the formal equality theory, which argues that women should be treated equal to and the same as men; cultural feminist theory, which insists that law needs to take into account the differences’, between men and women; the dominance theory, which emphasizes the embedded structures of power and privileges; and the anti- essentialism approach, which points out thatfemale’ is not a single category but is a result of the intersection of race, class, ethnicity, or caste6. Most of the debates are shaped taking into account the unique experiences of women in terms of pregnancy and motherhood, as well as the harms women face, such as violence in the forms of domestic abuse, rape, sexual assaults, that occur due to patriarchal structures of power. These critical insights are shaping legal practice.

Scholars have deduced the relationship between the ways the law is practiced and how it asserts male-defined norms. For instance, Catharine Mackinnon7 opined that legal norms are defined by the male standards at the workplace against which the performance of all persons is measured, while women see legal situations through their feminist consciousness. She argued that feminist lawyers utilize the approach that `believe in women’s accounts of their lives’. Abrams8 distinguished between legal and feminist methods to describe that feminist lawyering has transformed ideas about gender justice and lawyering and has altered the legal system. West9 argued that the ethic of care is rooted in the female experiences of connection, emotions, and empathy that provide a distinct moral stance, which is necessary for the ethic of justice. Therefore, the feminist methods deploy women’s lived experiences and realities that are different from male-designed legal categories to address women’s subordination.

Dimensions of Feminist Lawyering

Many lawyers, activists, and organizations in India shy away from using the term feminist10. One of the common arguments raised is that it is a Western concept and unsuitable for the Indian context. However, this belief is outdated because, firstly, feminism is not a monolithic term. Even in the West, it has evolved over the decades where black, migrant natives, and other multiple groups of women have contributed to shades of feminism. Spivak11 argued that unlike Marxism, feminism is not defined by a single book’ but is based on the lived experiences of women. Moreover, in India, through their resistance, the feminists have mediated the culture to shape the broad understanding12.

Secondly, neither oppression nor lawyering function in isolation. Rather, feminist lawyering has developed as a response to patriarchal oppression. Thirdly, people in India are following global philosophies such as Marxism, socialism, capitalism, and so on. Many Western ideologies and terminologies are borrowed by scholars. Fourth, in the neoliberal, digitalized world, the line between thelocal’, national’, and theinternational’ is getting blurred over the years with the economic and structural transformations happening due to the increasing digital connectivity, cross-border migration, global trade, and many other factors. For instance, the #MeToo movement which started in the Western hemisphere and spread in India, shows how debates travel globally. Fifth, international human rights practices too have been making a mark in influencing the practices around the world and are being woven into the constitutions and legal systems of different countries. This language of rights is evoked by the feminist movements to demand entitlements for underprivileged groups. The international provisions dealing with the rights of women, such as the CEDAW, the Beijing Platform, the Millennium Development Goals, and the Sustainable Development Goals, have further opened a window where experts from different countries collaborate to refine the debates on women’s rights.

Sixth, in the legal field itself, due to decades of colonialism, several jurisprudence theories that originated in the West have found a place in Indian jurisprudence. Moreover, the Indian legalsystem is based on the enactments and interpretation of local customs and practices by the colonial rulers, while the Indian legal system was developed based on the Victorian morality that prevailed then13. Also, debates and discussions around the making of laws against Sati, widow remarriage, child marriage, the Age of Consent Bill, and many others were initiated during the colonial era, when the imperial rulers shaped the laws and policies.

Lastly, Indian feminist lawyers, since ages, have practiced feminism in their own ways. Even before independence, the unsurmountable struggle of women lawyers to enter the bar in colonial India has been documented. For instance, women lawyers such as Regina Guha14 , Sudhanshubala Hazra15 and Cornelia Sorabji during the early 1900s pushed the boundaries to claim their rightful place in the legal system and fought for women’s right to practice in the courts until April 1923, when the rules that barred women from practicing law were changed16. Further, during the making of the Constitution, fifteen women contributed during the debates in the Constituent Assembly17. In the post-independent nation, Dr. BR Ambedkar, MK Gandhi, and other lawyers have raised issues such as the Hindu Code Bill and various other laws18.

In independent India, various cases utilizing the constitutional provisions of equality, liberty, and social justice have been filed that challenge the discriminatory legal provisions and policies. Over the years, women confronted the embedded patriarchy, as evident from various cases from CB Muthamma v. Union of India19 to Nargesh Mirza’s case20 , Mary Roy21, Vishakha’s case22, Sabrimala matter23 and ABC v. State (NCT of Delhi)24, where they challenged centuries of subordination to demand substantive equality.

Therefore, feminist lawyering in India has shattered the sexist stereotypes and discriminatory attitudes that have existed and been propagated for generations. In fact, the years of advocacy by the feminist movement have compelled the Supreme Court to acknowledge the existence of gender stereotypes in courtrooms25. Feminist lawyering, while drawing a connection between different rights, has played a crucial role in achieving the goals of social justice by expanding the constitutional provisions26. Chief Justice Chandrachud, in a roundtable on Feminism in Practice: Feminist Lawyering and Feminist Judging in 2018, noted that the constitution itself is feminist and “to be really a feminist is to do what the constitution requires you to do27.”

Significant elements of feminist lawyering

Feminist lawyering requires a proper mix of enthusiasm from a fiery and passionate lawyer to battle for the cause of the oppressed, indignation at gross injustice, a strong sense of commitment with a dose of courage and conviction, the skills of pleading from a humane perspective, the abilities to link individual cases of derogation of rights with the larger structural oppression, besides interrogation and reinterpretation of the constitutional and legal provisions from the perspective of the oppressed. It entails methodological innovations to revise laws based on the lived realities of women. More importantly, sensitivity and empathy for disadvantaged are the key ingredients required to make a feminist lawyer. Aside from using academic jargon or asserting legal privileges, the role of a feminist lawyer is to enable the marginalized to speak for themselves, to preserve integrity and clients’ wellbeing, and to hold the androcentric state accountable. Feminist lawyering deploys a combination of legal theory, practice, action, and interventions, or praxis that requires professional as well as personal commitment.

Moreover, in situations of violence against women, as a feminist lawyer, one identifies the
client’s problem not as a personal but as a larger political issue, as `personal is political’28. This is because inequalities at a larger level affect a person within a family or a community. Though legal education asserts that a professional lawyer should not get emotionally involved in a client’s personal problem because it may cloud one’s neutral judgement29, in cases relating to violence, professional goals and personal commitments may get integrated because one needs to safeguard the interests of the client30. Also, a feminist lawyer seeks to address multi-dimensional issues such as helping the client with decision-making, counseling, assisting in criminal cases, seeking protection orders, custody orders, maintenance, and other related issues, and also, at times, may have to coordinate with NGOs assisting women with community development programs or women’s commissions. Several cases may require a comprehensive approach to empower women, challenge gender injustice, and break the cycle of continuous violence. The focus, therefore, is on survivor-centric justice and a victim-centered system.

Feminist versus traditional lawyering in the Indian context

The common law deals with the rights of parties involved in litigation where a lawyer appears for the injured party. By redressing the individual grievances or by expanding the scope of law to apply it to the given facts, a civil or criminal lawyer may be setting new models of legal analysis. Yet, the traditional lawyers work to protect the private interests of the parties; their goal is not public welfare, but in traditional litigation, the client’s interest is of paramount importance31. This form of lawyering is client-centered, reactive, and limited.

In contrast, feminist lawyering is based on a pro-active approach. Rather, it moves beyond
traditional litigation to critically analyze the law to connect it to everyday realities of women’s lives. It is not restricted to a traditional client-lawyer relationship or convincing the court of one side of the case, but it involves working for the cause of gender justice and finding an imagined alternative’32 with the vision of equality, inclusion, participation, and democracy. It is not only about demystifying the laws but also challenges common stereotypes and notions, and therefore, in its scope, it is beyond typical lawyering. As a reformer, a feminist lawyer utilizes legal tools to shape social institutions to ensure that they are sensitive and empathetic. Feminist lawyering, therefore, is reformulating the conventional methodologies of traditional lawyering.

Feminist lawyering entails monitoring and analyzing cases to address gender wrongs and ensuring that the laws are implemented with a framework to empower women. For instance, while discussing several cases such as that of Olga Tellis33, Hawker’s case34, Nandita Haksar explained that feminist lawyering implies shifting from a focus on charity to legal reform with the ultimate goal of legal transformation while putting an alternate version of development. It is therefore different from a reductionist approach to the legal system that reduces the facts to techno-legal questions. Away from focusing on a competitive approach that preferswinning a case’, feminist lawyering combines professional commitments to collaborative goals from a gender perspective. The parameters of success in such lawyering are not measured in terms of income or earnings, the size of the legal firm, or the number of cases a lawyer has won, but rather in terms of subtle measures such as achieving social change, effectiveness in terms of the impact on individual clients, peace, contentment, job satisfaction, contribution to the larger cause, impact on gender justice norms, enhanced feminist consciousness, increased social awareness, and more importantly, progressive transformations.

Using feminist tools, feminist lawyering examines and addresses the multiple dimensions of the problems to make constitutional and legal rights real and meaningful. For this purpose, it takes up strategic activities such as community organization, legal reforms35, providing legal aid, paralegal training, legal literacy, awareness building, educating and sensitizing citizens as well as policymakers and law enforcers36, raising critical consciousness37, influencing and shaping public opinion, strategizing for media outreach, fact-finding, research, reporting, mobilizing, negotiating policies, documentation, reporting abuse, monitoring the enforcement of laws and policies, class action or public interest litigation, designing social campaigns, and a range of similar activities depending upon the context. This includes working with the judiciary, police, and communities, as well as addressing policy and planning issues to respond to the ground level concerns. These strategies are applied using key features such as empathy, transparency, non- discrimination, equality, diversity, participation of those affected, and most importantly, respect for human dignity while providing services38. In other words, feminist lawyering counters the patriarchal version with an alternative or democratic model of development while preserving the voices and dignity of the client39. Feminist lawyering does not believe in compromising the larger politics for a short-term alternative of winning the case’40.

Feminist consciousness is being deployed to draw a connection between violence against women, curtail offensive practices, and reinforce feminist-inspired advocacy to positively transform society. For instance, Agnes41 portrayed how the demands made by the women’s movement regarding the making and implementation of laws pertaining to violence remained ineffective and have failed women while empowering the state because solutions were sought within the patriarchal framework rather than addressing the power imbalance. While drawing a distinction between the high-profile rape cases and the ordinary ones, she argued that a nuanced analysis is needed to understand the emerging trends in the judgments42.

In cases where one side is being victimized by those who are powerful, the lawyer needs to strategize and structure her lawyering based on evidence. Frequently, men in power file SLAPP suits against women to silence their voices43. In such anextremely adversarial atmosphere’, a feminist lawyer is supposed to be prepared to counter the backlash. For instance, in Rupen Deol Bajaj’s matter44, Bajaj was demonized by the media for raising the issue that is too `trivial against a man who was considered a national hero’ explained Indira Jaising, who stood with her in a long fight for justice 45 . Sixteen years later, in Priya Ramani’s case 46 , her lawyer, Rebecca John, explained how she has worked throughout to defend her client’s interest while also connecting it to the larger oppression of women at the workplace that has implications for the MeToo movement in India 47 . In 2022, Teesta Setalvad, who supported victims during Gujarat riots in 2002, faced charges and was arrested the day after the Supreme Court dismissed the petition filed by Zakia Jafari48. Recently, Bilkis Bano’s matter shows how feminist solidarities, at various levels and in different forms, become essential in the struggles for justice49.

Thus, feminist lawyering uses the gender lens to bring feminist analysis into courtrooms. It deals with a comprehensive framework of socioeconomic as well as civil and political rights, rather than reducing a problem to merely a litigation issue. A feminist lawyer interprets the realities of women’s lives to develops a political-legal program with the feminist methods, the legal methods and also that can be eclectic to empower the oppressed. The roles and demands of a feminist lawyer are neither fixed nor rigid, but these are derived from the desire to shape abstract rights into concrete realities and are envisioned by one’s commitments to empower the subjugated. Frequently, feminist lawyers have devised multiple methods in the realm of substantive law to expose the dynamics of power and to provide a comprehensive solution to the client’s problem.

Feminist lawyering demands affirmative actions

Theoretically, the law is premised on neutrality and objectivity. Practically, the legal system does not exist in a vacuum; it is not perfect, but it mirrors the patriarchal biases that exist in society. This contradiction affects its ability to provide justice in an unequal society. Justice, therefore,remained elusive because the social arrangement in which the courts and clients are situated are not neutral. Legal powers frequently serve the interests of powerful, and therefore, a lawyer has to question the neutrality of the law and the system50. Technically, to ensure justice, the survivors’ interests should remain central to the legal discourse, yet the legal system is so designed that in the courts, legal technicalities occupy the central place. Therefore, to rectify such odds, feminist lawyering strives to maintain legal objectivity from the perspective of the oppressed. Lawyering, therefore, is not about maintaining a neutral position in the face of injustice; it is about standing with the truth.

In situations where one side is being dominated and subjugated, feminist lawyering focuses on the survivor-centered approach instead of the court-centered or technical approach. While having an in-depth analysis of power dynamics, a feminist lawyer raises the voices of the marginalized, or, in other words, it tells the story from below. A feminist lawyer supports the cause of the oppressed by exposing how discriminatory laws and policies negatively impact marginalized groups. It involves experiential learning, which requires continuous interaction of theory and practice to seek social change. In other words, it is a form of legal realism where the law is used as a means to an end rather than an end in itself51. Being aware of the historical abuse of power to sustain conditions of domination, feminist lawyers embrace legalism as a tool of necessity to address injustice. Moreover, issues such as hunger, unemployment, illiteracy, and a lack of basic health and education facilities, are all caused by power imbalances that result in inadequate distribution and not by a dearth of resources. Assessing the context of reality of oppression and proposing non-neutral principles that demand affirmative actions becomes a compulsion in situations where power, resources, and decision-making abilities rest with a few.

Feminist lawyering entails challenging patriarchy

Feminist lawyering is neither about a man-versus-woman issue nor it is about demanding formal equality. In a hierarchical and multi-layered society, it is about raising questions and countering discriminatory patriarchal attitudes to demand justice. Feminist lawyering in a patriarchal society is about shattering the walls of misogyny and sexism that have been built and cemented over generations. It recognizes the fact that the justice system is tilted in the favor of the accused and against the victim, and therefore, it highlights the unequal power dynamics in relationships. Also, though the legal system is a guarantor of rights, justice is not unproblematic52. Rather, scholars have noted that law is a subversive site53. Despite its complications, feminist lawyers utilize the law as a site to challenge the dominance and assert women’s rights.

The challenges of feminist lawyering

Being in the male-dominated profession is not easy for a woman as a judge, a lawyer, or a
litigant to navigate the patriarchal legal system54. Many scholars have noted that courts are a hostile territory for women55. Social barriers prevent women’s entry into the legal profession56. Cases of sexual harassment are reported within the premises of the courts57. Some are simply brushed aside58. Misogyny and sexism are rampant. Systemic discrimination denies women lawyers vertical mobility. Elsewhere, Pierce59 observed that double standards and sexist attitudes exist in law firms to make women invisible. In Indian situations too, female lawyers face similar dilemmas of competing with aggressive male litigators on a daily basis. Some scholars suggested that women’s lawyering style is different because they may not prefer adversarial modes of practice that are competitive but may prefer collaborative lawyering60. The visible and invisible glass ceilings exist at the workplace.

The challenges for feminist lawyering are multiple, where they need to create a space and assert themselves in the male-dominated legal arena. For a feminist lawyer, it is essential to challenge the discriminatory prejudices, and biases that exist in society and operate in everyday lives – within families, communities, and the legal system itself. The stereotypes relating to gender roles explain why women abandon their careers during their prime years61.

Moreover, feminist lawyering involves loads of unspectacular, slow, and steady work, and at times, it remains unpaid or lowly paid, painful legwork involves running around in the trial courts, which may be the exact opposite of the desires of an aspiring professional to earn quick money in neoliberal times. In times when success is shaped by cut-throat competition, feminist lawyering combines personal commitments to professional goals with a feminist vision to represent wider interests. Other issues range from a lack of resources while working with poor clients to the attitudes of court staff and male lawyers toward women62. Despite these complications, feminist lawyering remains an interesting field where lawyers are transforming the law and society around them.

Using legal imagination to create a just and caring society

“The foundation of future feminist struggle must be solidly based on a recognition of the need to eradicate the underlying cultural basis and causes of sexism and other forms of group oppression. Without challenging and changing these philosophical structures, no feminist reform will have a long-range impact”63.

Bell Hooks, 1984, p. 31

Feminist lawyering in patriarchal society imagines an oppression-less world. It involves putting laws, facts, human rights, and social values together to see a violation of rights as a legal problem that requires a just solution. Feminist understanding recognizes the differences between the dominant and the dominated and strive to eliminate the patterns of domination. It is a movement to end marginalization and subjugation by dismantling social hierarchies to transform unequal power structures with tools that involve not only litigation but other strategies at the larger level to make law and society gender sensitive. Feminist lawyering entails a constant mechanism to pursue constitutional objectives and engage with the law in terms of ethics and morality. The aim of feminist lawyering is to end the system of domination and the interrelatedness of sex, race, class, and caste-based oppression. Fired with zeal for justice, feminist lawyering expands the legal imagination to enhance the scope of rights and justice beyond the traditional categories to include not only the schism of civil and political rights but also social and economic rights within the prism of the right to life with dignity for all human beings. Even in dark times, feminist lawyering believes in the power of ordinary people to strive for change. It envisions positive law reforms that enable and facilitate the participation of women in political and legal processes. It imagines an oppression free world, and challenges biased practices to create spaces for alternative views. Feminist lawyering manifests affirmative rightsto positively impact the everyday lives of common citizens. Therefore, feminist lawyering is seen in a broader context beyond litigation to include making, enforcing, and monitoring the law
and policies from a feminist point of view to uphold the values of inclusion, diversity, justice, substantive equality, and liberty as premised in the constitution. It is their spirit of defiance that strengthens the struggle against all forms of tyranny, feminist lawyering provides optimism to emancipate society. Utilizing broader thinking, feminist lawyers mold legal subjectivity to expand the scope of just citizenship and forge new imaginations for a fair and caring world.

Adv Dr. Shalu Nigam is a feminist advocate, researcher and an activist working at the intersection of gender, law, governance, and human rights. Currently, she is a senior visiting fellow at IMPRI.

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Acknowledgment: This article was posted by Aasthaba Jadeja, a visiting researcher at IMPRI.