Envisaging Feminist Lawyering in the Indian Context APRIL 23, 2024 IMPRI INSIGHTS

 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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58. Hindustan Times (2013) Law intern sexual harassment case: Ex-judge still on Kolkata university rolls, November 30,
    https://www.hindustantimes.com/india/law-intern-sexual-harassment-case-ex-judge-still-on-kolkata-university-rolls/story-OiLOKbFheXfdcHzgWE0PLI.html
59. Pierce JL (1996) Gender Trials: Emotional Lives in contemporary Law Firms, University of California Press, California
60. Carrie Menkel-Meadow (1985) Portia in a different voice: Speculation of women’s lawyering process, Berkley Women’s Law Journal 1: 39-63
61. Blau Francine D. and Lawrence M. Kahn (2016) The Gender Wage Gap: Extent, Trends, and Explanations 12, National Bureau of Economic Research, Working Paper No. 21913 http://www.nber.org/papers/w21913
    [https://perma.cc/R5N9-DK2W
62. Outlook (2020) Women Lawyers are hampered by Systemic discrimination and Gender Barriers: Justice Gita Mittal, November 20, https://www.outlookindia.com/newsscroll/women-lawyers-are-hampered-by-systemic-discrimination-and-gender-barriersjustice-gita-mittal/1983827
63. Bell Hooks (1984) Feminist Theory: From Margins to center, South End Press, USA

 Different Facets of Feminist Lawyering in India

18 October 2022

Much is being written about feminist lawyering in the West, but what is the purpose of feminist lawyering in the patriarchal context in third-world nations? While reflecting on case laws and activism in India, this essay argues that feminist lawyering in a deeply 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, eradicating oppression, challenging sexist stereotypes, abolishing fascism and addressing conditions that perpetuate domination. In a society, where citizenship rights are denied to certain groups based on social parameters such as gender, race, caste, class, or religion, feminist lawyering in such a context has to be understood broadly as a practice that supports those on the margins while holding the state accountable. It is about questioning the androcentric norms within and outside the courtrooms, asking the law, courts, and society to be sensitive about gender concerns and to recognize and enforcing the citizenship rights of half of humanity. This essay concludes that the purpose of feminist lawyering is to negotiate and contest the rights at various levels where feminist lawyers strive to transform the androcentric law and the layered, hierarchical society with the aim to enforce constitutional provisions of equality, liberty, and social justice in reality

What is Feminist lawyering and why it is required? 

Justice Chandrachud in Kesvananda Bharathi v State of Kerala2 , observed, “The Constitution is not intended to be the arena of legal quibbling for men with long purses. It is made for common people. It should generally be so construed as that they can understand and appreciate it. The more they understand it the more they love it and the more they prize it”. (para 1947)  

The judgement further noted, “It is really poor, starved and mindless millions who need the Court’s protection for securing themselves the enjoyment of human rights. In the absence of an explicit mandate, the court should abstain from striking down a constitutional amendment which makes an endeavor to wipe out tear from every eye”. (para 1953) 

However, contradictions exist, as Baxi3 noted that it took several decades for the Supreme Court of India to take the cases of common people and to transform itself from a “traditional captive agency with a low social visibility into a liberated social agency with a high socio-political visibility”. Over the decades, people from different backgrounds including undertrials, convicts, men and women in custody, children in juvenile institutions, women who have been bought and sold, bonded laborers, agricultural laborers, slum and pavement dwellers, kin of victims of extrajudicial executions, all have approached the courts to ameliorate their miseries arising from repression by the state, lawlessness, Kafkaesque bureaucracy and administrative tyranny. Some received justice, others are denied the same. The reasons for denial of justice range from problems in access to justice, cost of litigation, lack of infrastructure and personnel, subjective biases, poverty, corruption and many more. In fact, the situation at the ground reveals a disconnect between the law and the sufferings of the common people. Despite its emphasis on the people-oriented concept such as Public Interest Litigation, Lok Adalats, National Legal Literacy mission, enactment of the Legal Service Authority Act, 19875,  and so on, the legal system remained a domain of privileged, powerful and resourceful men where the voices of those at margins including women are suppressed6 . The guarantee of equality, affirmative actions, liberty, fraternity and justice in the Constitution remained a far-fetched dream7 . 

Moreover, the law is a space that remains dominated 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 themselves8 . To overcome these discrepancies, women as citizens, lawyers, judges, activists, women’s organizations, and as a part of the larger women’s movement, women are demanding justice and equality. During the pre-colonial period, women joined the freedom struggle. In the post-colonial nation, the women’s movement is making efforts to ameliorate the situation of women9. For decades, feminist lawyering is challenging the male-dominated, elite paradigm to create a space that facilitates access to justice for all. 

Feminist lawyering facilitates to legislate, execute and implement the laws with a feminist understanding – the aim is to enable the citizens to voice their concerns, demand justice and address their situations of oppression. Feminist lawyering, therefore, sees law as an instrument to challenges deeply embedded inequalities, such as patriarchy, elitism, class-based discrimination, communalism, fascism, exclusion, misogyny and sexism and makes demands for enacting such laws and policies that promote the representation of feminist voices in public and political space. Cahn10 noted that “engaging in feminist litigation involves feminist lawyering on feminist issues”. In the patriarchal society, feminist litigation involves feminist lawyering on the feminist issues as well as on the larger social issues that are interconnected and essential to meet broader feminist visions.

 Feminist lawyers are reformers as they are not only concerned about the outcomes under the given system but they also seek transformation in the socio-legal norms. Feminist lawyering is based on the collaborative, multi-disciplinary approach that searches for creative ways to challenge intensely entrenched structural discrimination. The purpose is to dismantle social hierarchies to transform unequal social structure by critically examining the way power operates to dominate in the relationship between an oppressor and an oppressed in its sociocultural context of domination to diminish oppression. It is therefore different from a reductionist approach to the legal system that reduces the facts to techno-legal questions. Away from a focus on a competitive traditional legal approach that focuses on `winning a case’, feminist lawyering combines professional commitments to the wider goals from the gender perspective. The parameters of success of 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 these are based on subtle measures such as achieving social change, effectiveness in terms of the impact on individual clients, the policy status quo11, peace, contentment, job satisfaction, contribution to the larger cause, changes in gender justice norms, enhanced feminist consciousness, increased social awareness and more importantly making a positive social impact on the ground. 

In the West, several theories have been propounded by feminist theorists to draw linkages between feminist law-making, legal theory and the legal profession to show how these are interrelated and the way these are making an impact on how law is practiced12. Four major schools of legal theory have evolved over the years. These include the formal equality theory that argues that women should be treated equally to and same as men, cultural feminist theory that insists that law needs to take into account the `differences’, between men and women, the dominance theory emphasized the embedded structures of power and privileges while the antiessentialism approach that pointed out that `female’ is not a single category but is a result of the intersection of race, class, ethnicity or caste13. Most of the debates are shaped taking into account the unique experiences of women in terms of pregnancy and motherhood, and also by harms, women face such as violence in the forms of domestic abuse, rape, sexual assaults and so on that occur due to patriarchal structures of power. These critical insights are shaping legal practice. 

Scholars have deduced the relation between the ways the law is practiced and how it is asserting male-defined norms rather than achieving the goals of justice. For instance, Catharine Mackinnon14 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 account of their lives’ and is based on the understanding that these accounts reveal abuse by men. Abrams15 while analyzing the work of Mackinnon, distinguishes between legal methods and feminist methods. She described that feminist lawyering has transformed the ideas about gender justice and lawyering and has altered the legal system. 

West16 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. However, Leslie Bender17 analysed the structure of the law firms and pointed out that in the male-dominated environment women are expected to adopt characteristics of male lifestyles to succeed as lawyers as the legal profession is designed as per androcentric norms. She explained that the legal structure ‘constructed by men rewards and reinforces gendered male characteristics’. (p. 949) Some scholars suggested that women’s lawyering style is different than that of male lawyers as women may not prefer an adversarial mode of practice that is competitive. Rather women seek lawyering that is collaborative18 . 

Feminist Lawyering in the Indian Context 

Many lawyers, activists and groups in India shy away from using the term feminist19. One of the common arguments raised against the use of the term is that it is unsuitable to the Indian context as it is being used in the specific context of the Western world. However, this belief is outdated. 

This is because firstly, feminism is no longer a monolithic term. Even in the West, it has evolved over the decades where black women, migrant women, native women, and other multiple groups have contributed to the different shades and tints of feminism. Spivak (2010) argued that, unlike Marxism, feminism is `not defined by a single book’ it is based on the lived experiences of women20. Though the resistance and struggle against dominance by the Indian feminists have their own distinct character as it is mediated through the Indian culture21, many of the practices are often informed by the west22

Secondly, neither oppression nor lawyering functions in isolation. Rather feminist lawyering has developed as a response to patriarchal oppression. The struggles against oppression have several common characteristics the world over and are rooted in the history of colonialism, World wars, the holocaust, domination and the emergence of modern political concepts such as democracy and citizenship. 

Thirdly, people in India followed many philosophies such as Marxism, socialism, capitalism and so on. All these philosophies have been used and developed across the globe. Many other Western terms, ideologies, terminologies and so on have been borrowed by the scholars here and vice versa. 

Fourth, in the neoliberal, globalized and digitalized world, the line between the `local’, `national’ and `international’ issues is getting blurred over the years with the economic and structural transformations happening due to the increase in 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 is one of the examples of how debates in one part of the globe travel to other parts. 

Fifth, international human rights practices too have been making a mark in influencing community practices around the world and are being woven into the constitutions and legal systems of different countries to different extents. This language of citizens’ rights is being used by social movements to demand entitlements for underprivileged groups. Also, under the guise of `development’, when global capitalism is capturing markets in the third world and is influencing the economics and politics, taking away the forests, land and livelihood of the most marginalized, the indigenous population is fighting back in all possible ways to save their `jal, jungle and zameeen’ (water, forest and land). 

Sixth, in the legal field itself, due to decades of colonialism, several jurisprudence theories, legal concepts and principles as originated in the West have found a place in Indian jurisprudence too. Rather the legal system that operates today in India is based on the enactments and interpretation of local customs and practices by the colonial rulers. The Indian Penal Code was developed by Thomas Babington Macaulay, a British man, based on the Victorian morality that prevailed then23. 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 played a significant role in shaping 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 Guha24 , Sudhanshubala Hazra25 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 changed 26 . Further, during the making of the constitution, fifteen women contributed during the debates in the Constituent Assembly27. The values and ideals of liberty equality and more importantly substantive equality and affirmative discrimination in the constitution reflect the intent of the lawmakers to end patriarchal oppression. In the post-independent nation, Dr BR Ambedkar, MK Gandhi, and other lawyers have raised women’s issues such as the Hindu code Bill and various other laws28 . 

In independent India, various cases utilizing the constitutional provision of equality, liberty and social justice have been filed that challenged the discriminatory legal provisions, and policies. Women confronted patriarchy as evident from various cases from CB Muthamma v Union of India29 to Nargesh Mirza’s case30, Mary Roy31, Sabrimala matter32 to ABC v Union of India33 , where they challenged the centuries of subordination that put women at the lower pedestal as compared to men. In all such cases, women demanded substantive equality, not formal equality. In Vishakha’s case34 the court, in the absence of a national legislative framework, evolved a guideline to protect women from sexual harassment at the workplace based on international women’s human rights instruments and hold the state and other actors at the workplaces accountable in the process.  

Therefore, feminist lawyering in India has analyzed the women’s issue utilizing the perspective of substantive equality to shatter the sexist stereotypes and discriminatory attitudes that have existed and propagated for generations. Kaufman35 while comparing the enforcement of equality provisions as enshrined in the Indian and the US Constitutions respectively, argued that though in both places the courts deploy formal equality principle, yet India’s commitment to affirmative action and protective discrimination has helped to alleviate the centuries of women’s exclusion. The focus on `substantive equality provides hope to enable women’s full and equal participation in society’. (p 561) 

Feminist lawyering, therefore, involves achieving and latching the goals of social justice by expanding the utilization of Articles 14 and 15 of the constitution to claim liberty as well as substantive equality while linking it to provisions in Article 21 based on the right to life with dignity to point out the direction towards autonomy and freedom. Drawing a connection between different rights to ensure justice is a formidable skill of a feminist lawyer. Social, economic, political, all are interlinked and cannot be seen in isolation36. A traditional lawyer may see it differently but for a feminist lawyer, human rights are indivisible and interconnected. 

Recently, 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 do”. “Liberty, equality and a sense of fraternity… once you accept that is really the fundamental constitutional foundation for our society… in which to be really a feminist in that sense is to do what the Constitution requires you to do, to give effect to the fundamental notions of equality which we are bound by the office and the nature of our calling to pursue. In that sense when you apply feminist principles either in terms of outcome, in terms of reasoning, procedures you follow in court, you are doing nothing to my mind but to give effect to substantive equality”37 . 

More lately, the Chief Justice of India, NV Ramana in his speech noted gender imbalance in the Indian Judiciary and called for `urgent correction’ by suggesting that women should raise their voices in anger to demand 50 percent reservation in the judiciary as a `right’ not as a `matter of charity’38. Therefore, in India, much more is required to be done in terms of addressing the goals of gender equality and social justice. The right-based perspective needs to be enhanced from the point of view of women’s lived experiences. There is a need to debate and expand the concept of feminist lawyering keeping in mind the ground realities and the concerns. 

Significant Elements of Feminist Lawyering

Feminist lawyering requires a proper mix of enthusiasm of a fiery lawyer to battle for the cause of the oppressed, indignation at gross injustice, a strong sense of commitment with a dose of courage, passion and conviction, the skills of pleading to include humane perspective, the abilities to link individual cases of derogation of rights and domination with the larger structural oppression, besides interrogation and reinterpretation of the constitutional and legal provisions from the perspective of those oppressed. More importantly, sensitivity and empathy for those who are subjected to domination and a passion for gender-just lawyering, are some of the ingredients required to the making of a feminist lawyer. 

Away from academic jargon or asserting legal privileges, the role of a feminist lawyer is to enable those marginalized to speak for themselves, preserve the integrity of the client’s emotions and address the androcentric state from the perspective of the oppressed. Feminist lawyering is a curious mix of legal theory, thinking, practice, action, and interventions or the praxis that requires professional as well as personal commitment. As a legal and social reformer, a feminist lawyer utilizes the legal tools to shape social institutions that are sensitive, empathetic, and just while also reformulating the conventional methodologies of traditional lawyering

In short, feminist lawyering involves loads of unspectacular, slow and steady work, and at times, it remains unpaid or lowly paid painful legwork that involves running around in the trial courts which may be the exact opposite of the desires of an aspiring professional in the neoliberal times, where the cut-throat competition is a norm and where success is defined by earning quick money. Yet, on the other hand, cause lawyering has helped many professionals to draw a linkage between the everyday problems of life and the legal theory as mentioned in the law books, thus learning those aspects of the law that cannot be taught in the classrooms and deriving contentment from the fact of making larger contributions to the society and the legal profession. 

Feminist Lawyering versus Traditional Lawyering in the Indian Context 

The common code of civil law deals with the rights of parties involved in litigation where a lawyer appears for the injured party. That may not imply that a civil lawyer is not making social change. By redressing the grievances of parties or by expanding the scope of law while applying it to the given facts, a civil or criminal lawyer may be setting new models of legal analysis. Yet, the common lawyers work for the private interests of the parties, their goal is not public welfare, but in traditional litigation, the client’s interest is of paramount importance. In the adversarial system, a lawyer may charge a fee to represent the interests of the clients whether those interests harm the interests of others or not or maybe at the odds of general public interest39. This form of lawyering is client-centered lawyering which is different from public-good lawyering. 

Feminist lawyering, across the boundaries of class, caste or religion, involves speaking for women as well as enabling women to speak for themselves. It is not only the demystification of laws but also it is about challenging the legal as well as common stereotypes and notions, and therefore, in its scope, it is beyond typical lawyering that is reactive and limited. 

Feminist lawyering implies moving beyond traditional litigation towards cause lawyering while emphasizing elements such as gender sensitivity, legal monitoring that involves analysing case laws to address gender wrongs, and ensuring that the laws are implemented with the framework to empower women and marginalized sections. For instance, while discussing several cases such as that of Olga Tellis40 , Hawker’s case41, and other cases, Nandita Haksar, explained that alternate lawyering in the Indian context implies shifting from focus on charity to legal reform with the ultimate goal of legal transformation while putting an alternate version of development rather than simply rejecting the existing ones42. Feminist lawyering focuses on a proactive approach. It encompasses normal courtroom litigation and also it moves beyond litigation into the domain of critically analyzing the law while connecting it to the everyday realities of women’s lives. Feminist lawyering is different from traditional legal practices in the sense that it examines and addresses the multiple dimensions of the problems to make constitutional and legal rights for women real and meaningful. For this purpose, it takes up strategic lawyering activities such as community organization, legal literacy and education including awareness building, educating and sensitizing common citizens as well as bureaucrats about the rights of people43, raising critical consciousness44, influencing and shaping public opinion, media outreach, fact-finding, research, reporting, mobilizing, lobbying, negotiating policies, documentation, reporting abuse, law-making, monitoring the enforcement of laws, para-legal training, class action, designing social campaigns and range of other activities besides assisting poor clients, providing legal aid, engaging in litigation that may include public interest litigation, depending upon the social context including aligning with political cause for broader social change. This also includes working with the judiciary, police, as well as the community, taking up legal reforms, besides addressing the issues of policy and planning to deal with the real concerns at the ground level. 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 services45. In other words, feminist lawyering counters the patriarchal dominating version with the alternative or democratic model of development with a focus on alternative lawyering while preserving the voices and dignity of the client and also addressing the larger concerns of the clients. In short, feminist lawyering does not believe in compromising the larger politics for a short-term alternative of `winning the case’46 . 

Feminist methods deploy women’s lived experiences and realities that are different from male-designed legal categories and address the concerns relating to women’s subordination. Feminist consciousness is being deployed to draw a connection between violence against women, to curtail offensive practices and to reinforce feminist-inspired advocacy to positively transform society. For instance, Flavia Agnes47 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 high-profile rape cases with that of the ordinary ones she argued that a nuanced analysis is needed to understand the emerging trends in the judgments48 . 

Similar to society, the legal system is not perfect, it has to be made perfect to serve substantial justice. Feminist lawyering entails a constant mechanism to pursue social objectives. Legal powers frequently serve the interest of those in power and therefore, a lawyer has to question the neutrality of the law and the system. A feminist lawyer has to engage with the law in terms of ethics and morality. Feminist lawyering, therefore, involves experiential learning. Besides learning laws and doctrines, legal education to pursue this form of learning requires constant interaction of theory and practice to focus on reforms49. This form of lawyering involves applying legal and social theories to real situations which impact real people using the system to seek social change. It is a form of legal realism where law is used as a means to an end rather than an end in itself50. Feminist lawyering, therefore, 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. The feminist lawyer thinks beyond the traditional legal framework to see the power of law and to critically evaluate that law does not necessarily entail justice. 

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, while also playing a larger role in making changes within the adversarial legal system and within society. Frequently, men in power file false or SLAPP suits against women who raise their voices against harassment51. The feminist lawyer is supposed to be prepared to counter such backlash. For instance, in the Rupen Deol Bajaj’s matter52, 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 through Bajaj in her long fight for justice53. 16 years later in Priya Ramani’s case54, 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 implication for #MeToo movement in India55. In 2022, Teesta Setalvad, who supported victims during Gujarat riots in 2002 faced charges and was arrested the day after the Supreme Court dismissed petition filed by Zakia Jafari56. A feminist lawyer, therefore, has to prepare accordingly for an `extremely adversarial atmosphere’. 

Thus, feminist lawyering is a broad concept. It uses a gender lens to bring feminist analysis into the courtrooms to suggest changes based on the lived experiences of women and other oppressed groups. It also deals with a comprehensive framework of socio-economic rights as well as civil and political rights rather than reducing a problem to merely a litigation issue. Feminist lawyer interprets the realities of women’s lives and develops a politico-legal program by reference to the methods that are not only derived from law but also that can be eclectic to empower those who are oppressed. The roles and demands of the 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 commitment to empowering the subjugated communities. Feminist lawyering is about methodological innovations that involve revising laws based on the lived realities of women. Frequently, feminist lawyers in Indian settings have devised a multiplicity of methods in the realm of substantive law to expose the dynamics of power. 

Feminist lawyering is not neutral but it demands affirmative actions

Another fact that emerged from the above discussion is that the law assumes neutrality in an unequal society. This contradiction affects its outcome to provide justice. Justice, therefore remained elusive because social arrangements in which the courts and the clients are situated are not neutral. Technically, to ensure justice, the survivors’ interest should remain central to the legal discourse, yet the legal system is so designed that in the courts, it is the legal technicalities that become central. This is one of the dilemmas, that feminists and human rights lawyers face. Therefore, to rectify such odds, feminist lawyering strives to maintain legal objectivity from the perspective of the oppressed. It is not about maintaining a neutral position in the face of injustice, but it is about standing with the truth. In a situation where one side is being dominated and subjugated, feminist lawyering is about focusing on the survivor-centered approach instead of the court-centered or technical approach. A feminist lawyer takes a stand to support the cause of the oppressed by exposing how laws and policies negatively impact marginalized groups57 . 

While having an in-depth analysis of power dynamics and the way power operates, a feminist lawyer raises the voices of the marginalized or ordinary people in confrontation against the powerful, or in other words, it is about telling the story from below. Being aware of the fact of the historical abuse of power to sustain existing conditions of domination, feminist lawyers embrace legalism as a tool of necessity making legal consciousness in order to attack injustice. Elitist legal system is used besides evoking the concepts of rights to meet the needs of the clients even knowing that the system is corrupt and the privileged rule. The dualist approach to a repressive legal system is based on seeing law as a necessary logical tool. The need is to detach from it emotionally and use the consciousness of the real hierarchical world to make sense from the point of view of the clients’ experiences to search for pathways for justice. Or as Audre Lorde said, “The Master’s tools will never dismantle the Master’s house”58, the multiple consciousness view of jurisprudence is a deliberate choice to see the world from the standpoint of the oppressed. Survival is neither an academic nor a legal skill, rather it is about learning to recognize differences and make it a strength by defining and empowering rather than by dividing and conquering as expressed by Lorde. 

Moreover, issues such as hunger, unemployment, illiteracy, and lack of basic health and education facilities, all challenges that citadel of neutrality. These are not caused by the dearth of resources but are caused due to power imbalances that result in inadequate distribution. These situations cannot be evaluated by utilizing the idea of neutrality but by demand assessment based on the reality of oppression. Proposing nonneutral principles that demand affirmative actions, desegregation, curtailment of hate, and elimination of violence, become a compulsion in situations where power, resources, and decision-making abilities rest with a few. These proposals recognize the differences between the dominant and the dominated and strive to change patterns of domination. Feminist lawyering is about creating a world of possibilities for all irrespective of one’s identity.

Feminist lawyering entails challenging patriarchy 

Feminist lawyering is not about a man versus a woman. It is also not about demanding formal equality. In a hierarchical and multi-layered social arrangement, it is about raising questions and countering discriminatory patriarchal attitudes that have been existing. Feminist lawyering in a patriarchal society is about shattering the walls of misogyny and sexism that have been built and cemented over generations by the male-dominated society. It is about shaping a society that is more diverse, feminine and inclusive. It is about creating spaces for alternative views of looking at the laws and policies and challenging those practices that are biased. 

Feminist lawyering recognizes the fact that the justice system is tilted in favor of the accused and against the victim. This form of lawyering acknowledges the unequal power dynamics in the relationships. For instance, in domestic violence matters, 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 to representing a woman in counter proceedings such as divorce matters, custody disputes, 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 help empower women, challenge gender injustice and break the cycle of continuous violence. More than winning a case, many times, situations demand to help the client to recover from the complex mesh of emotional, mental, financial, social and other problems she may be facing. The lawyer, therefore needs to deal with the subjectivities related to the situation of dealing with violence59 . 

In all such cases, as a feminist lawyer, one needs to identify with the client’s problem not as a personal issue but one needs to draw linkages with the larger political issue while recognizing that `personal is political’60. Though legal education asserts that a professional lawyer should not get emotionally involved in a client’s personal problem because it may cloud one neutral judgement61, yet in situations such as dealing with domestic violence cases, professional goals and personal commitments may get integrated because one needs to safeguard the interest of client62. 

Also, the legal system, though is a guarantor of rights, yet, justice is not unproblematic63. Rather scholars have noted that law is a subversive site64. Despite its complications, feminist lawyers utilize the law as a site to challenge domination and assert women’s rights. As legal theorists and activists, feminist lawyers bring intersectional theory to reshape the idea of justice sifted through people’s anger, pain, their daily lives, and histories thinking of justice as concrete realities filtered through the substantive mesh and directly addressing the realities of oppression. Feminist lawyering is about examining the problem through the lens of `multiple  consciousness’65 to address the realities and experiences of women. Moreover, in the Indian context, cause lawyering or movement lawyering has incorporated feminist perspectives to advocate for gender justice. 

Feminist Lawyering has its own Challenges 

Being in the male-dominated lawyering profession is not easy for a woman as a judge, a lawyer or a litigant66. Many women’s scholars have noted that courts are hostile territory for women67. Social barriers prevent women to enter the legal profession and to enter the court premises as litigants or citizens claiming rights. Cases of sexual harassment are reported within the premises of the courts68. Some are simply brushed aside 69. Misogyny and sexism are rampant. Systemic discrimination against women denies women lawyers vertical mobility Further, the style of male lawyers is completely different from that of female lawyers. Elsewhere Pierce70 observed how double standards and sexists attitude exists in law firms. Celebrated lawyers whom she termed as `Rambo litigators’, behaved in forceful and aggressive ways. They take control of courtrooms yet they expect women paralegals `to nurture them and affirm their superior status’ in the office hierarchy. The emotional labor paralegals are expected to display reproduce gender divisions in the law firms and may lead to harassment that affects the psychological well-being of women paralegals71. The female attorneys using tough aggressive tactics are regarded as brash or obnoxious by their male colleagues while at the same time, lack of toughness marks them as ineffective. Pierce argued that this gendered division of labor benefits men economically, emotionally and personally. However, women lawyers and paralegals develop creative strategies for resisting and disrupting the male-dominated status quo. In Indian situations too, female lawyers face similar dilemmas of competing with aggressive male litigators on an everyday basis in the court premises. 

The challenges for feminist lawyering are multiple, where the need is not only to create space and assert themselves in the male-dominated legal arena but also to challenge the discriminatory, traditional stereotypes, prejudices and biases that exist in society and operate in everyday lives – within the families, communities, societies and the legal system itself72. In India, female lawyers face sociocultural pressures and patriarchal conditioning that compel women to make difficult choices between their career and their family. The visible and the invisible glass ceiling at the workplaces and the traditional gender roles explain why women abandon their careers during their prime years and the stereotypes that reasons as to why there is a huge gender gap in workforce participation73. Other issues range from lack of resources while working with poor clients, low professional fees, and the attitude of court staff and male lawyers toward women lawyers74. 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

 “...Truth, like song, is whole, and half-truth can be noise! Justice is truth, is beauty and the strategy of healing injustice is discovery of the whole truth and harmonizing human relations. Law's finest hour is not in meditating on abstractions but in being the delivery agent of full fairness. This divagation is justified by the need to remind ourselves that the grammar of justice according to law is not little litigative solution of isolated problems but resolving the conflict in its wider bearings."75 (Justice Krishna Iyer, 1997)

Feminist lawyering in the third-world patriarchal society imagines an oppression-less world. It is a movement to end marginalization and subjugation by dismantling the 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 while eliminating all forms of oppression. The aim of feminist lawyering is to end the system of domination and the interrelatedness of sex, race, class, and caste-based oppression. As Bell Hooks (1984) writes

 “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”76. (p. 31) 

Similarly, feminist lawyering fired with the missionary zeal for justice, is about expanding 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 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 is their spirit of defiance that strengthens the struggle against all forms of tyranny that provides optimism to transform society. Feminist lawyering hopes for a legal change that imagines the elimination of gender oppression. It is about positive law reforms that enable and facilitate the participation of women in the political and legal processes. It is about manifesting affirmative rights to positively impact the everyday lives of common citizens. Therefore, feminist lawyering is seen in the broader context beyond litigation to include making, enforcing and monitoring the law and policies from the gender-based point of view to uphold the values of inclusion, justice, substantive equality, and liberty as premised in the constitution. Utilizing constitutional thinking, feminist lawyers mold the legal subjectivity to expand the scope of just citizenship to forge new imaginations for a fair and caring world. 

1 This essay is based on the author’s first-hand experiences as an advocate, researcher, and activist working at the intersection of gender, law, governance and human rights over decades and also her research-based background that is strengthened through her experience of working with human rights and women’s movement in India while associating herself with CWDS, Indian Social Institute, PUCL and other such organizations. This paper is originally written in September 2021 and revised in 2022 

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72 There are young women lawyers law interns and students whom this author has interacted with who have shared how difficult it was for them to convince their families to allow them to join the law colleges. Even the author’s own personal experience is not different. In patriarchal societies where families decide that the ultimate aim of a girl is to get married, the legal profession is seen as an obstruction as not many men would choose to marry a woman lawyer who is deemed to be outspoken, aggressive, non-compliant and therefore `unfit’ for a `stable marriage’. 

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