Ala kicks off its new translation series, ‘Speaking Otherwise’, with a 2013 piece from the feminist magazine, Sanghaditha. Here, two women legal professionals draw on their experiences defending domestic violence survivors in Kerala’s lower courts to provide a grounded perspective of a foundational question that feminists raise: is the law a tool of change, or a tool for enforcing the status quo?
Arathi P M and Athira P M
Prefatory Note: Ala’s new article series will feature translations from the iconic magazines and newsletters produced by Kerala’s movement spaces that have lasting resonance in the present day. Through the series, we hope to ignite renewed interest in these archives and take them to a broader readership.
We kick off the series with translations from Sanghaditha [Woman United] Magazine. Sanghaditha is a publication of Anweshi, an early women’s organization in Kerala active since 1993, led by activist and organizer K. Ajitha. Aiming to ‘[provide] an arena where women have access to publishing and can pen their opinions that would help mould shared and visible spaces for women’, Sanghaditha’s first issue was released in 2010. The archive of Sanghaditha, its past conversations, interventions, and solidarities can be accessed by visiting their website.
The first piece we have chosen to translate is from Sanghaditha’s March 2013 issue, titled ‘കോടതിയെന്ന പുരുഷയിടം’. As women lawyers and feminist activists based in Kerala, the authors reflect on the court as a workplace for women and as a place where women seek justice, drawing crucial connections between the two perspectives. A decade later, the points they make continue to provide depth and context to a range of issues at the fore in India’s public discourse. Most recently, India’s Supreme Court issued a non-negotiable directive for all State Bar Councils to reserve 30% of all elected and non-elected office-bearing posts for women, noting the historically abysmal representation of women in Bar Councils. At the same time, in response to decades’ of legal reforms for women’s rights, India’s growing “Men’s Rights Movement” has established itself in the mainstream, shaping cinema and cultural discourse in Kerala and even leading to a private member bill tabled at the Rajya Sabha proposing a National Commission for Men in the same vein as the pre-existing Women’s Commission. The men’s rights movement in India has a distinct legal bent; they focus on countering the misuse of marital violence and dowry laws protecting women and the provision of alimony for women in the event of divorce. Since 2017, the case in Kerala against film actor Dileep for orchestrating sexual assault against a co-worker has also divided public opinion on the legal treatment of women, especially with Dileep’s recent acquittal. Public statements by the survivor, actress Bhavana, noting the biased treatment she received from the legal system, have fuelled a new round of debates about the judicial system as an inhospitable place for women’s rights. The following piece deepens our understanding of these distinct current events as part of overall tendencies in how the patriarchy intersects with law.
For anyone who leads a public life, reconciling the contradictions between one’s personal life and the politics and ideals one upholds poses a major challenge. This is particularly the case for those who seek to simultaneously uphold class politics and feminist values. If the class enemy is often distant from one’s lived experiences, patriarchy and the resistances to it play out in one’s most intimate spaces. This is also why feminist politics becomes a potent site to unsettle the double lives we lead through public-private binaries. Progressiveness in the contemporary era is marked by people questioning why their daily life must be neatly apportioned between family, work, and society. This article attempts to explain how women bear the brunt of these contradictions and the agitation they create by analysing courtrooms as workplaces. Drawing on personal experience, we attempt to analyse how the law shapes and marks feminist politics here
Women and law have become integral topics in formal and informal spaces of discourse today. From international UN agencies to local village panchayats, law has become a big part of any serious discussion about women. Across the board, these discourses raise a fundamental question: to what extent can laws bring about substantial change in women’s lives? Is it simply yet another way to sustain the power relations undergirding patriarchy, or can it become a tool for social change? Do even ostensibly “pro-woman” laws produce misogynistic effects in practice? How feminist are our courtrooms and judicial processes? Here, we examine these questions at the intersections of women’s issues and law through work experiences.
We have taken up practice as lawyers at a time when India’s feminist legal thought is preoccupied by the question of whether the women’s movement as a whole has become confined to demanding and crafting new laws. Apart from pushing back against the establishment, most of India’s progressive women’s movements have also fought for anti-discrimination laws grounded in equality, aimed at improving women’s everyday lives. For over two decades, we have witnessed various branches of the movement set aside their differences to mobilize together for lawmaking around issues such as dowry, violence against women, gender-based discrimination, and affirmative action in workplaces. It was also during this period that feminist causes began finding a place in Kerala’s mainstream Left politics under the aegis of ‘progressive politics’.
The Courtroom as Workplace
The court is a place that alienates not just those who work for feminist causes, but anyone who holds a humanist approach. Even the physical spaces of much of our lower courts are anti-woman. There is no place to sit or rest, no drinking water, no toilets, and no private facility for those with infants to breastfeed. Such an extensive and seemingly intentional lack of basic facilities makes courtrooms yet another public space in which women struggle to exist . What is disturbing is that this situation does not seem to bother either the judges or the advocates of these courts. The same public conscience that sees it fit to offer a bus seat to a woman with an infant completely neglects the same woman when she turns up in a court, perhaps in a much more emotionally and physically exhausted state after spending entire days waiting in the court’s verandahs. For us, it is truly unsettling, after having taken gender sensitisation classes for various batches of KSRTC bus conductors, to return to a totally indifferent situation in our own workplaces. Daily engagements between judges and advocates, and within these groups, tend to be largely male-centric and often misogynistic. Lawyers’ lounges in court spaces tend to be gender-segregated, and dailies are made available only in the men’s section. It is rare for women to brave the strange looks from men to become interlopers in these spaces so they can read newspapers. Such women are viewed with furrowed brows by their colleagues.
In the legal sector, cases come to lawyers based on their experience and skill. But society has certain preconceived notions about the skills of women lawyers. Men are considered suitable to argue criminal cases. Women are not good at handling criminals, cross-examining them, and conducting homicide cases. Women are most suited to handle civil and family court cases. The kinds and volume of such cases that come to women lawyers despite these norms are severely limited. These norms explain why so few women end up taking up practice even as they join law degrees in equal or even greater numbers than men.
Men and women who obtain their licenses to practice law at the same time, however, face very different experiences. Women who excelled in classrooms fall behind in professional contexts. The reasons for this include the lack of social networks that young women endure in a patriarchy, and the limited cases that they get in a law firm, where they face differential and discriminatory treatment. Women lawyers tend to begin independent practice years after the men lawyers who graduated with them. There are many women who spend a lifetime being stuck as juniors in others’ firms. They must rely on society’s leniency to ‘borrow’ from family time to run an office and stay up late when needed. In cases where the court itself must look into certain disputes by appointing an advocates’ commission, it is common for the bench to explicitly direct that commissions in complex cases must be male-only; an instruction that is strictly followed.
In a field like this that demands constant, continued learning, it becomes especially hard for women to maintain the balance between court practice, office work, and sustaining a family. The kinds of reproductive labor that society deems to be ‘women’s duties’, such as childbirth and child-rearing, keep them away from the demands of their profession. When they are forced to take long periods of absence from the courtroom space, where a good lawyer is meant to maintain a constant presence, their very status as professionals is affected. As such, women lawyers are forced to limit their practice to MACT [Motor Accident Claims Tribunal] courts and civil cases. It becomes impossible to sit till late in the office to study cases in depth or meet clients who might only be able to meet lawyers after their workdays. The norm that a woman’s public and social life must end when the sun sets (this might be different in the Supreme Court or in High Courts located in metro cities) deeply impacts the work life of a woman lawyer.
Whose Judiciary?
As we regularly experience the growing gaps between the laws we handle, the verdicts we hear, and the ways in which verdicts are implemented, along with the misogynistic and anti-worker approaches in judicial spaces, we are forced to ask whose judiciary this is, and for whom this system truly exists. For example, the harassment we might face as women lawyers handling domestic violence cases is not considered workplace harassment. Let us recount an experience here. The petitioner is a woman who sought refuge with her parents after suffering multiple forms of violence at the hands of her husband. A lecturer at IHRD (Institute of Human Resource Development), she continued to be harassed by her husband even after leaving her marital home—he forcefully took away and threatened to kill their child, demand money, and defamed her on Facebook. At this point, the petitioner approached a lawyer, and the request for interim relief included the following points: end the domestic violence against the petitioner; restrain the husband from entering the petitioner’s home, restrain from harassing her at her workplace, and defaming her on social media. The judicial officer’s response before he even opened the dossier of twelve articles of evidence, including a printout of the petitioner’s Facebook page, was this: ‘Do you want to kick the husband out of the country or what? At the end of the day, isn’t he her husband?’ When we left the courtroom, the petitioner asked whether the case could be moved to another court. How can a woman take her complaint to a place that minimizes her agony and the violence she has faced?
In another case, where the request was to remove from the home a husband who was responsible for the death of the petitioner’s father, the judicial officer asked, “Isn’t the husband’s life worth anything?”When we questioned this by asking what about the petitioner’s life, the response was: ‘Things will sort themselves out, aren’t they husband and wife, they will find a way to live together’. In another case, the psychiatric counsel’s report clearly stated that the petitioner’s husband is prone to violence and must only live with his wife only after receiving treatment for addiction. Despite the husband openly refusing treatment in the court, the court ordered the wife to continue living with her husband. Five days later, she was admitted to Kozhikode Beach Hospital with serious injuries to her head. It is common for the judiciary to minimize such issues. The law against domestic violence specifies various forms of violence, including verbal and emotional violence. When such a case came to court, the question was, ‘Why can’t you resolve such issues among yourselves? Why waste the court’s time with such issues?’ The reluctance to take up cases under IPC 498A (against violence against women) and the general approach of questioning women petitioners’ credibility reveal the entrenched misogyny of courtroom practices.. A study of ten landmark domestic violence cases handled by upper courts in India found a pervasive tendency for courts to question the credibility of the woman petitioner(s) in such cases and to worry about the possible misuse of the law. Significantly, It is within the law against workplace harassment that the Indian legislation first introduced a punishment for misuse of the law itself. Lawmakers assume that since working women are ‘shrewd’, they are bound to misuse the law. We have not seen a single court acknowledge the sheer effort it takes for a woman to approach the court of law despite a range of pressures and mediations she endures. Although evidence law and criminal procedures promise ‘equal treatment’ to women, in practice, such a ‘neutral approach’ authorizes the kind of unempathetic approach towards women standing in the witness box that only deepens the helplessness that they experience. Women from different lived experiences merit special attention. Courts never actually ensure the conditions for women to speak without fear, even in in camera proceedings supposedly meant to guarantee privacy. When a rape case comes to court years after the incident, the woman witness (the survivor) changing her account is simply chalked up to women’s general ineptitude. In fact, hearings only begin several years after the incident. In a recent case we were involved in, when the perpetrators offered a hefty sum to settle the case, the girl’s father said, ‘We don’t want any money; she is now married and leading a peaceful family life, so please quash this case somehow’. We have not seen any court discuss the social responsibility that such cases entail.
Lawyers who prove their mettle in winning domestic violence cases never receive the kind of recognition and appreciation that successful lawyers in other legal fields do. The judicial community often handles such lawyers as “nuisances” – the same way, or even worse than, the complainants they represent. Even when approaching benches for other cases, we find that misogynistic remarks bubble up in our engagements, weakening our resolve to fight from within the legal system. At the end of each workday, we are left with not much else other than the task of managing the expectations and emotions of our clients, the complainants who approach the court with the sense that there is always justice to be sought in this system.
These lower-court experiences indicate that the feminist question of whether the law is a tool for change or for patriarchal oppression is an exceedingly complex one. At the same time, in the process of seeking redress for a number of everyday battles, women are also learning to respond to the unjust and apathetic reactions of governing agents. Although slowly, they are learning to reclaim judicial spaces for themselves. Upon recognizing the limitations of the judicial system through their bitter experiences, women are becoming compelled to think seriously beyond legalistic modes of seeking justice. Certainly, the oppressed woman who seeks justice in courtrooms is thwarted. At the same time, Lenin reminds us that the meaning of life must be sought in life itself. This is why we are, nevertheless, able to find strategies for resistance in every inhospitable workplace.
