Dowry is a serious economic violence

 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 

2 Kesvananda Bharathi v State of Kerala (1973) 4 SCC 225

3 Baxi U (1985) Taking Suffering seriously: Social Action Litigation in the Supreme Court of India, Third World Legal Studies, 4(6) 107-132 https://core.ac.uk/download/pdf/144549317.pdf 

4 Baxi Upendra (1982) The Crisis of Indian Legal System, Vikas Publications, New Delhi 

5 No. 37 of 1987 amended in 1994 as Legal Service Authority (Amendment) Act, Act No. 59 of 1994 

6 Committee on Status of Women in India (1974) Towards Equality: Report of the Committee on Status of Women in India, Ministry of Education and Social Welfare, Department of Social Welfare, Government of India. 

7 High Level committee on the Status of Women (2015) Executive Summary: Report on the Status of Women in India, Ministry of Women and Child Development, Government of India, //efaidnbmnnnibpcajpcglclefindmkaj/viewer.html?pdfurl=https%3A%2F%2Fwcd.nic.in%2Fsites%2Fdefault%2Ffil es%2FExecutive%2520Summary_HLC_0.pdf&clen=618974  

8 Nigam S (2021) Domestic Violence Law in India: Myth and Misogyny, Routledge, Delhi 

9 Kumar Radha (1993) History of Doing: An Illustrated Account of Movement of Women’s Rights and Feminism in India, Kali for Women, Delhi 

10 Cahn Naomi R (1991) Defining feminist Litigation, Harvard Law Journal 14 (1): 1

Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4251727

11 Morton FL and Avril Allen (2001) Feminists and the courts, Canadian Journal of Political Science, 34(1) 55-84 

12 Bowman Cynthia Grant and Elizabeth M Schneider (1998) Feminist Legal Theory, Feminist Law Making and the Legal Profession, Fordham Law Review, 67(2) 249-271 

13 Becker Mary E. Cynthia Grant Bowman and Morrison Torrey (1993) Cases and Materials on Feminist Jurisprudence: Taking Women Seriously, West Publishing Company, USA. 

14 Mackinnon Catherine (1987) Feminism Unmodified: Discourses on Life and Law, Harvard University Press, Cambridge 

15 Abrams Kathryn (1991) Feminist Lawyering and Legal Method, Law and Social Enquiry, 16(2) 373-404  

16 West Robin (1997) Caring for justice, New York University Press, New York 

17 Bender Leslie (1989) Sex Discrimination of Gender Equality? Fordham Law Review 57(6): 941-953 18 Carrie Menkel-Meadow (1985) Portia in a different voice: Speculation of women’s lawyering process, Berkley Women’s Law Journal 1: 39-63 

19 Kishwar, Madhu (1991) Why I Do Not Call Myself a Feminist, Manushi 61:2-8. 

20 Spivak GC (2010) A lecture on Situating Feminism at Berkley University https://www.youtube.com/watch?v=garPdV7U3fQ 

21 Ghosal Sarbani Guha (2005) Major Trends of Feminism in India, The Indian Journal of Political Science, 66(4)793-812 

22 Agnew Vijay (1997) The West in Indian feminist discourse and practice, Women’s Studies International Forum, 20(1): 3-19

23 Chan Wing-Cheong, Barry Wright and Stanley Yeo (2011) Codification, Macaulay and the Indian Penal Code: The Legacy and Modern Challenges of Criminal Law Reform, Routledge, New York

24 Regina Guha, In re, ILR (1917) 44 Cal 290, 29-08-1916 

25 Sudhansu Bala Hazra, ILR (1922) 1 Pat 104, 28-11-1921 

26 Sen Jhuma (2019) The Indian Women who Fought their Way into the Legal Profession, The Wire, February 13, https://thewire.in/law/women-lawyers-history-india 

27 Scaria Mary and Shalu Nigam (2016) The Founding Mothers: 15 Women Architect of the Indian Constitution, Media House, Delhi 

28 Kumar Radha (1993) History of Doing: An Illustrated Account of Movement of Women’s Rights and Feminism in India, Kali for Women, Delhi 

29 CB Muthamma v Union of India, 1979 AIR 1868 

30 Air India v Nargesh Mirza AIR 1981 SC 1829 

31 Mary Roy v State of Kerala AIR 1986 SC 1011 

32 India Young Lawyers Association v The State of Kerala 2018 

33 ABC v State (NCT of Delhi) 2015 SCC Online SC 609 

34 Vishakha v State of Rajasthan AIR 1997 SC 3011  

35 Kaufman Eileen (2006) Women and Law: A Comparative analysis of the United States and Indian’s Supreme Court’s Equality Jurisprudence, Georgia Journal of International and Comparative Law, 34(3) 559-618 

36 Nair A and M Katheria (2020) Senior Advocates Indira Jaising and Nitya Ramakrishnan called upon feminist lawyers to break stereotypes and challenge power structures, The Leaflet, November 8, https://www.theleaflet.in/senior-advocates-indira-jaising-and-nitya-ramakrishnan-call-upon-feminist-lawyers-tobreak-stereotypes-and-challenge-power-structures/# 

37 Jain Mehal (2018) Constitution itself is Feminist, Justice Chandrahud on Transformative Constitution and Feminism, The Livelaw.com October 7, https://www.livelaw.in/constitution-itself-is-feminist-justice-chandrachudon-transformative-constitution-feminism/ 

38 The Indian Express (2021) CJI bats for 50% reservation in judiciary, The Indian Express, September 26, https://indianexpress.com/article/india/cji-50-womens-reservation-judiciary-7535963/  

39 Abel Richard L (1985) Law without politics: Legal aid under advanced capitalism, UCLA Law Review, 32, 474- 617 

40 Olga Tellis and others vs Bombay Municipal Corporation, 1986 AIR 180 

41 Bombay Hawkers' Union And others vs Bombay Municipal Corporation, 1985 AIR 1206

42 Partners for Law in Development (2000) Role of Law in Development: Workshop Report 5-8 April held at Convention Center, Jamia Hamdard organized jointly by PLD and Astha Sansthan, Rajasthan //efaidnbmnnnibpcajpcglclefindmkaj/viewer.html?pdfurl=https%3A%2F%2Ffeministlawarchives.pldindia.org%2F wp-content%2Fuploads%2Fmerged_document_4.pdf%3F&clen=616820&chunk=true p 54 

43 Nigam S (2008) Legal Literacy: A Tool for Empowerment, Social Action, 58(2) 216-226 

44 Freire Paulo (1970) Pedagogy of the Oppressed, Translated version 2000 used the term conscientization which refers to “learning to perceive social, political and economic considerations and to take action against oppressive elements of reality”, 

45 Aiken Jane Harris (1997) Striving to teach `Justice, Fairness and Morality’, Clinical Law Review, 1 (4) 11

46 Partners for Law in Development (2000) Role of Law in Development: Workshop Report 5-8 April held at Convention Center, Jamia Hamdard organized jointly by PLD and Astha Sansthan, Rajasthan //efaidnbmnnnibpcajpcglclefindmkaj/viewer.html?pdfurl=https%3A%2F%2Ffeministlawarchives.pldindia.org%2F wp-content%2Fuploads%2Fmerged_document_4.pdf%3F&clen=616820 

47 Agnes Flavia (1992) Protecting Women Against Violence? Review of a Decade of Legislation, 1980-89, Economic and Political Weekly, 27(17) WS19-33 

48 Agnes Flavia (2015) Not by Stricter law alone, The Indian Express, October 27, https://indianexpress.com/article/opinion/columns/not-by-a-stricter-law-alone/ 

49 Wizner Stephen (2002) The Law School Clinic: Legal Education in interest of justice, Fordham Law Review, 70, 1929-31 

50 Barry Margaret Martin et al (2000) Clinical Legal Education for this Millennium: The Third Wave, Clinical Law Review, 7 (1) 59-60

51 Nigam Shalu (2021) Strategic Law Suits Against Public Participation in India: Why the neutrality principle of law is not working, countercurrents.org, July 15, https://countercurrents.org/2021/07/strategic-law-suits-against-publicparticipation-in-india-why-the-neutrality-principle-of-law-not-working/ 

52 Rupen Deol Bajaj v KPS Gill 1996 AIR 309 

53 Jaising Indira (2021) Priya Ramani’s Judgement Vindicate the #MeToo Movement, The Leaflet, https://www.indirajaising.com/post/priya-ramani-judgement-vindicates-the-metoo-movement 

54 Complaint case No. 05/2019 District court, Rouse Avenue, Delhi complainant MJ Akbar versus Priya Ramani, decided on 17.02.21 https://www.livelaw.in/pdf_upload/mobashar-jawed-akbar-vs-priya-ramani-389297.pdf 

55 Bhandare Namita (2021) Workplace Sexual Harassment Law Needs Overhaul, IndiaSpend.com, February 20, https://www.indiaspend.com/indiaspend-interviews/workplace-sexual-harassment-law-needs-overhaul-729277 

56 Kar Angshuman (2022) Teesta Setalvad case: Facts sometimes are as strange as fiction, Outlook India, September 24, https://www.outlookindia.com/national/why-charge-sheet-and-allegations-against-teesta-setalvad-remainsketchy-news-225488

57 Nigam Shalu (2022) Demystifying the Power of law, Tedx Talk SIBM Bangaluru March 12 https://www.youtube.com/watch?v=xybT6pAr-8E&ab_channel=TEDxTalks

58 Lorde Audre (1984) Sister Outsider: Essays and Speeches, Crossing Press, Berkley CA 110-114

59 Copelon Rhonda (1994) Recognizing the egregious in the everyday: Domestic violence as torture, Columbia Human Rights Law Review, 25, 291 

60 Schneider EM (1986) The Dialectic of Rights and Politics: Perspectives for Women’s Movement, New York Law Review, 

61, 589. 61 Shalleck Ann (1993) Constructions of the Clients within Legal Education, Stanford Law Review, 45, 1739-52. 

62 Mahoney MR (1991) Legal image of battered women: Redefining the issue of separation, Michigan Law Review, 90 

63 Nigam Shalu (2019) Women and Domestic Violence Law in India: A Quest for Justice, Routledge, Delhi 

64 Kapur R and B Cossman (1996) Subversive Sites: Feminists Engagement with the Law in India, Sage, Delhi   

65 Matsuda MJ (1992) When the first quail calls: Multiple consciousnesses as a jurisprudential model, Women’s Rights Law Reporter, 14:213 

66 Mishra Soni (2016) I was sexually harassed in the corridors of Supreme court, The Week, November 13, https://www.theweek.in/theweek/cover/interview-indira-jaising-senior-lawyer.html?=1342504555784283727 

67 Singh Kirti (2013) Separated and Divorced Women in India: Economic Rights and Entitlements. Sage Publications, Delhi 

68 The Wire (2021) SC closes conspiracy cases initiated after sexual harassment allegation against Justice Gogoi, The Wire, February 18, https://thewire.in/law/supreme-court-conspiracy-case-closed-gogoi-sexual-harassment 

69 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-universityrolls/story-OiLOKbFheXfdcHzgWE0PLI.html 

70 Pierce JL (1996) Gender Trials: Emotional Lives in Contemporary Law Firms, University of California Press, California 

71 Pierce JL (1999) Emotional labor among paralegals, The Annals of American Academy and Political Science, 561: 127-142

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’. 

73 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 

74 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-systemicdiscrimination-and-gender-barriersjustice-gita-mittal/1983827 

75 J Krishna Iyer in Jasraj Inder Singh v Hemraj Multanchand (1997) 2 SCC 155

76 Bell Hooks (1984) Feminist Theory: From Margins to center, South End Press, USA