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Q&A: Indira Jaising, Additional Solicitor General

Human beings can't be 'kept'

Akshat Kaushal  |  New Delhi 

India’s first woman Additional Solicitor General, Indira Jaising, tells Akshat Kaushal what life is like in a men-only world

Indira JaisingYou have a lot of firsts in your life. You were the first woman to be given the status of senior advocate by the Bombay High Court. You were the first Indian woman to be elected to the UN Committee on Elimination of Discrimination Against Women and then the first woman to become Now, you are perhaps the first to openly criticise the judgment of a Supreme Court judge in his presence...
When I started my career, I was clear about making law useful for sections of society which are dispossessed. The moment you have that focus, everything falls in place. Today, if I represent the cause of the dispossessed – such as homeless, women, bonded labour – it is because they have no stake in the system, because the system offers them nothing and they have to fight and struggle every inch of the way. This is where my attitude comes from.

More than ten years ago, the Vishakha case led to a landmark judgment. More than a decade after that, have attitudes to women changed?
The dealt with dignity of women at workplace for the first time, because it dealt with non-monetary issues. It was not about equal pay, not about equal conditions of employment, but about maintaining the dignity of women by not sexually harassing them. The transition from monetary to non-monetary issues was a leap in awareness for the judiciary. But this leap in awareness has not been sustained across the board. And by this I mean that not enough is being done by the government to spread information on these positive, proactive laws.

Where does the problem lie? Are the police insensitive, the judiciary insensitive, the laws insensitive, or is the society to be blamed?

I would say that in the last five years, there has been a push from the civil society, and our decision-makers have responded by making progressive laws. Today, the issue is not absence of laws but that the ethos of these laws has not permeated to the implementers.

So, it is the implementers who are guilty...
I would say the first level of implementation is self-help. The second is implementation by the implementers, that is, courts, judges, police and the functionaries under the law.

We are failing at both the levels. Atrocities against women are growing, which means the members of the society have not internalised this ethos of equality. And the implementers are failing because they haven’t internalised the ethos of the society. So you can say that the laws are giving you the tools to achieve equality. The failure is elsewhere.

The other view is that women are misusing these laws.
Well, the normal answer to this question is that every law is capable of being misused. But I do not go by that argument.

Let us understand what mean by misuse. In case of domestic violence, it was 498A that said was being misused. What was the misuse? That were getting arrested? In other words, the argument was that the use of criminal law for domestic violence wasn’t appropriate.

Partly for this reason, we lobbied for a civil law for domestic violence. But we found people citing the same argument. So, we analysed what they meant by misuse. Earlier, they were saying arrest was misuse; and now they are saying, ‘what these women really want is the property of their husbands and are using the law as an excuse’.

If women are going to court and saying they want equal share in the property of their husband or brothers, I don’t call that misuse.

So, you can’t use criminal law because that puts husbands behind bars, and you can’t use civil law because their property will be taken away. What they basically want is: You are a woman, so please sit quietly and suffer. The moment you start using the law, they say you are misusing the law. Basically, they want you not to use the law.

In an article in 2006, you highlighted use of improper language by a high court judge for a woman lawyer. You wrote, “He (the judge) knew how woman make it, implying that they use immoral means.” You further wrote that when she (the lawyer) objected, he said, “You have no morality to outrage”. Now, four years later, we have a similar controversy. Do you think judges are unfair towards women?
It doesn’t surprise me that judges think that way. The only surprise is that this fellow voiced it. So, perhaps there are many who think that way.

Coming to the latest incident, my first objection to the use of the word ‘keep’ is that can’t be kept; only property can be kept. Let’s be clear on this. Only a slave can be kept. I think judges should understand this very clearly.

The second objection is they think that because a woman doesn’t have a mind of her own, she can be kept just like a property. It doesn’t occur to them that a woman can voluntarily be in a relationship with a man outside the framework of marriage.

My third objection is that it’s a term used just for women. That’s why I said in the open court: Shall I say that I can keep a man? Have you ever heard of an expression that I am keeping a man? It’s a totally gender-biased word. I think time has come when judges must learn that there is such a thing such as gender bias. And that the Constitution of India requires that they shed the gender bias.

When you were appointed the first woman assistant solicitor general, you said you would like to change the attitude that this was a political appointment. You were also entering a male bastion. Was it uncomfortable for the men in the beginning?
Very uncomfortable. They are uncomfortable even now, and that’s part of the reason some judges make comments like that in an open court, because they are uncomfortable seeing women in such positions. If they are willing to patronise a woman and she gets patronised, it’s fine. But if a woman has a mind of her own, and her own point of view, the discomfort begins.

Two, I think that it’s totally wrong to exclude women from these positions and also from the position of judges. It is not how we define democracy. In democracy, we define inclusiveness, and what we see is exclusiveness. Our democracy is defined as exclusion and not inclusion and part of that is: No women.

On the question of political appointment, we are law officers and not spokespersons of the government. And I would expect the government to stand by me if I make a justified criticism of a judge on the ground that the language is derogatory. I would not expect them to say: ‘You are the spokesperson of the government and so shouldn’t criticise the judges’.

First Published: Sun, October 31 2010. 00:09 IST