Indira Jaising Interview: ‘Now is the time to reclaim the Constitution’

For over five decades, Indira Jaising has been at the forefront of some of the country’s landmark legal battles on gender inequality, state violence, and institutional apathy. In her memoir The Constitution Is My Home (HarperCollins India), co-authored with the feminist publisher Ritu Menon, the senior advocate blends personal history with the story of a nation striving to uphold its constitutional ideals.

But the book is more than a chronicle of the professional journey of a legal luminary. It is also a deeply personal account of growing up in a family displaced by Partition, revealing how a lifelong search for belonging came to shape her understanding of identity and justice. In doing so, Jaising lays bare the intimate relationship between the personal and the political, weaving together the story of a life in law with that of a nation still striving to realise the constitutional promises upon which the republic was founded. In an interview at her office in New Delhi, the octogenarian reflects on the many challenges confronting the judiciary and why she believes the country must repeatedly return to the Constitution in moments of crisis. Edited excerpts:

In conversation with senior advocate Indira Jaising

Q: What prompted you to write this memoir? 

A: I was conscious that no book between two covers can ever fully capture a life, and that made me initially hesitant to write a memoir. At the same time, I found myself increasingly troubled by the loss of institutional memory within the legal profession. Cases were being decided without reference to earlier precedents on the very same issues. That disturbed me because it seemed to me that the memory of the court itself was gradually fading.

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What finally prompted me to write the memoir was that more and more young women began approaching me and saying, “You are the reason I chose to study law.” I found that difficult to understand because, as far as I am concerned, I have simply done what I do because I enjoy doing it. But their words made me realise that there was value in putting these experiences on record.

Q: You describe the Constitution as your home. Do you believe that home is secure today, amid concerns that the Constitution is increasingly being weaponised?

A: Yes, we are seeing the weaponisation of the Constitution. But that is also why I have come to regard the Constitution as my home. It is about reclaiming a space that belongs to citizens. The Constitution was not written for governments or ruling parties; it was written for the people. Now is precisely the time to reclaim the Constitution, abide by it, and reside in it.

Q: You write about your mother having to sacrifice her agency and personal freedom after marriage. Do you still see marriage as a patriarchal institution?

A: I do see it as a continuing problem. We have recently seen the dowry-related deaths of so-called modern women — women married into modern families and to modern husbands. There is hardly any doubt in my mind that marriage continues, in many ways, to be a form of property exchange.

In this country, we seem to honour women when they die, not when they are alive. I have seen countless cases where women approach courts seeking justice, only to be met with the accusation that they are misusing the law. How do you know she is misusing the law? Have you looked inside her home? The matrimonial home is still regarded as a ‘man’s castle’ and is far from being a safe space for women. Women must have access to a violence-free environment within their homes. It was this gap in the law that led me to imagine legislation such as the Protection of Women from Domestic Violence Act, 2005. The law has, to a large extent, helped women gain a greater sense of security within the home. But what is ultimately needed is a change in social attitudes. Patriarchy continues to shape our social institutions, and I do not believe there has been any fundamental change in the way marriage is viewed in this country..

Q: Do you believe patriarchal conditioning continues to influence judicial thinking?

A: Yes, patriarchal thinking definitely permeates the judicial system. At the same time, I believe such attitudes can be challenged through advocacy. There has also been a growing recognition of the role that legal language plays in stereotyping women. During the tenure of former Chief Justice of India D.Y. Chandrachud, a legal glossary was published to guide judges against the use of inappropriate gendered terms in legal discourse. This is a continuous process, but there is at least a recognition that the problem exists and needs to be addressed.

Q: You launched ‘The Lawyers’ magazine in the 1980s because you felt contempt powers were being used to silence criticism. How do you view the recent rise in contempt proceedings? Should such powers be reserved only for cases involving a direct interference with the administration of justice?

A: Yes, I agree with your latter observation. Where there is a direct interference with the administration of justice, the invocation of contempt powers may be justified.  There are, however, other laws, such as defamation, that are adequate to deal with unwarranted attacks on individuals.

At the end of the day, the judiciary has to earn its reputation. It must demonstrate not only its legality but also its legitimacy. Most importantly, it has to earn the trust of the public. Contempt of court is not the way to earn that trust.

Q: Several recent oral observations by the Supreme Court have sparked public debate. Do judges need to exercise greater restraint in their courtroom remarks?

A: Judges are expected to question lawyers and test their arguments. That is an integral part of the adjudicatory process. What becomes problematic is when oral remarks reveal a judge’s unconscious biases. Those remarks can then become the subject of public debate and, in some cases, damage the reputation of the judiciary. Judges should be conscious of this, particularly in an era of live-streamed court proceedings.

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I would also say that we need a stronger and more unified Bar that is willing to speak up when necessary. I have rarely seen a collective voice, whether from the Supreme Court Bar Association or other lawyers’ bodies, intervene at critical moments. There are individual voices, certainly, but they do not always make a difference.

Q: You write about coming from a family of refugees who migrated from Pakistan during Partition, and how that left you with a lingering sense of “rootlessness”. At a time when political discourse is increasingly centred on demographic change and illegal immigration, how has your personal history shaped the way you think about citizenship, identity and belonging, particularly in a subcontinent that still bears the scars of Partition?

A: Yes, it has had a profound impact on my life. People often ask, ‘Where do you come from?’ If I say Maharashtra, they tell me I am not Maharashtrian. My family came from Sindh, but there is no State in India called Sindh. So where do you locate yourself, and how do you answer that question? It is questions like these that make you realise that identity cannot always be confined to geography. At the end of the day, there is something called the Constitution of India. I inherited my citizenship; I did not have to prove it. It came to me as a gift of Independence, and that is what ultimately led me to see the Constitution as my home.

At the same time, I find much of the political discourse around migration deeply pejorative. Borders may exist, but there are enduring relationships between people across them. I therefore find it difficult to accept the hostility that is often directed towards our neighbours. At the very least, we should strive to have good relationships with our neighbours before we venture to build them with the rest of the world.

Q: While the Constitution protects the freedom of religion, how should courts approach cases where religious practices appear to be at odds with fundamental rights?

A: The conflict is irreconcilable. But the problem is a legacy of colonialism. In 1772, the British decided that Hindus would be governed by Hindu law, Muslims by Muslim law, and so on. There is no constitutional rationale for continuing to organise personal laws in such silos. As a result, discriminatory practices persist across all personal laws. When they remain unaddressed, you realise that the power of religion and other non-state actors can extend beyond the power of the Constitution. That is not acceptable.

Q: Do you think there is a conflict between constitutional morality and public morality, particularly when it comes to religious practices?

A: I do not think so. People today are reluctant to use the word morality, let alone constitutional morality. But morality does have an important role to play in our lives. When it comes to law, what other morality are we supposed to turn to if not the Constitution? I do not even understand what is meant by public morality. Your morality may be different from mine. More often than not, public morality becomes a form of majoritarian morality, and that is something I refuse to accept. I find it difficult to understand how any government can argue before a court that constitutional morality should simply be discarded. One would expect governments to be the first to affirm that they are guided by constitutional morality and committed to upholding it.

Q: You write about what you describe as a troubling lack of transparency within the judiciary. Do you think the process of judicial appointments should be subject to greater public scrutiny?

A: Yes, I think it would help people understand the judiciary better. The deliberations of the collegium should be made public so that citizens can understand the considerations that go into deciding who becomes a judge and who does not. Citizens also have a right to advocate for individuals whom they believe would make good judges. Fortunately, in May 2025, the Supreme Court published on its website detailed criteria, including performance appraisal standards, for the appointment of High Court and Supreme Court judges. That was a step in the right direction.

Q: Following the expansion of the Supreme Court’s sanctioned strength, four High Court Chief Justices and one woman senior advocate have been appointed to the top court. Do you see this as a missed opportunity?

A: At the time the Supreme Court Collegium made its recommendations, three women were serving as Chief Justices of High Courts, with a fourth set to join their ranks. Given this pool of senior women judges, I had hoped that more women would be elevated to the Supreme Court. However, not all the vacancies have been filled, and I remain hopeful that greater attention will be paid to gender representation in future appointments.

Q: You write about how your opposition to the bail pleas of certain officials implicated in the Gujarat riots was followed by the cancellation of the Foreign Contribution Regulation Act (FCRA) registration of ‘Lawyers Collective’, the organisation you co-founded. What message would you have for young lawyers who feel disillusioned by the profession?

A: I have always felt that those proceedings were, unfortunately, linked to my speaking out about the sexual harassment complaint made by a Supreme Court staff member against the then Chief Justice of India, Ranjan Gogoi, and the manner in which the matter was handled. What hurt was not the loss of the FCRA registration itself; it was feeling attacked by an institution that I had served all my life. However, what helped us through that difficult period was the fact that we were practising professionals. That is the message I would give young lawyers. The legal profession is a powerful and independent profession. Young lawyers must recognise their own strength. So long as they remain independent and continue working in the interests of the most vulnerable and disenfranchised, they have nothing to fear.

aaratrika.bhaumik@thehindu.co.in