The Indian Feminist Judgments project [IFJP] is a collaboration between feminist legal academics, litigators and judges, practitioners, and activists from law and other disciplines who use a feminist lens to re-write alternative opinions to existing judgments. Indian Law Review, Volume 5 (Issue 3) presents a set of six re-written judgments and accompanying commentaries prepared as part of the IFJP.
This interview with Anindita Pattanayak and Douglas McDonald-Norman was conducted over a Zoom call and edited for length and clarity. Douglas is a litigator who works in Australia and has written several articles in journals such as the Australian Journal of Human rights and Canadian journals on Refugee law. Anindita is an in-house counsel as well works as a researcher in legal policy. This interview pertains to their rewriting of the Kaushalya judgment, which challenges Justice Subbarao’s implicit use of the concepts of contamination and pollution regarding sex work.
[Ed Note: You can find information with regards to the podcast and can access all the episodes by clicking here]
Pranay: Hi everyone. Today we are joined by the authors of the ILR Feminist Judgment Rewriting Project. The judgment we are going over today is the State of Uttar v Kaushalya, rewritten by Douglas McDonald-Norman and Anindita Pattanayak. A small introduction before we get into the judgment: Douglas is a litigator who works in Australia and has written several articles in journals such as the Australian Journal of Human rights and Canadian journals on Refugee law. Anindita works in Indian courts. I’m excited to hear their thoughts on the judgment itself and how the process of rewriting it went. So, if we could get a brief introductory comment from any one of you?
Douglas: Thank you so much, Pranay and the Law and other things team for giving us the opportunity to discuss our feminist judgment on the State of Uttar Pradesh v Kaushalya. As the audience may be familiar with the 1964 judgment, the Supreme Court considers the constitutionality of Section 20 of the Suppression of the Immoral Traffic in Women and Girls Act or the SITA. The section permitted a magistrate, to their satisfaction, to require a woman accused of engaging in sex work to leave a particular geographical area, effectively constituting a sentence of banishment even absent on conviction of the criminal standards of proof. In the original judgment, Justice Subbarao found that Section 20 was consistent with Articles 14 and 19 of the Constitution, overturning an earlier judgment from justice William Broome of the Allahabad High Court. Anindita and I wrote an alternate take on the judgment, a dissent or an opposing perspective in which we examined Section 20 by reference to its apparent purpose by its philosophical underpinnings and ultimately using tools available to judges in the year 1964 and with regards to case laws during that time, concluding that Section 20 was inconsistent with Articles 14 and 19. We are delighted to discuss the philosophical perspectives underlying the judgment and the process of rewriting it. Anindita, do you have anything to add to that?
Anindita: I’ll highlight how we rewrote it and what we had in mind. First, we identified the legislation, the Suppression of Immoral Traffic in Women and Girls Act, as a paternalistic legislation that viewed its subjects, sex workers, as people without agency. So typically, sex workers were looked at by that legislation as women who did not willingly get into the business of sex work, which is evident from the fact that it’s an anti-trafficking law that not only targets trafficking but sex work itself. So, there was an assumption that every sort of sex work comes from coercion, such as trafficking. But this is a conflation of 2 different issues: forced sex work and consensual sex work.
We tried to expose that by identifying the petitioners in this case as women with agency asking for what they wanted. That way, when you look at it as less of a policy question and more of a how to provide the persons before the court agency, it goes into the traditional field of individual rights because instead, what the judgment initially thought of was more of a policy question about whether sex work is work or not, moral or not or is a polluting influence or not rather than what are the rights of the individuals before us that are being violated. So, we situated it in a rights perspective, we’ll talk about it later about how it could have been done even better, but the dialogue was shifted from policy to rights, so that’s how we looked at it then.
Pranay: Fantastic. Thank you so much for that. With that in mind, I have a few questions, and we’ll go one by one. So, the first question is that a lot of the time, the work we do daily as a lawyer informs the process of writing a judgment. So how is your work as a litigator, how did it influence the process of feminist judgment rewriting, and what kind of influence did it have while rewriting the judgment?
Anindita: I’ll answer it first since I have less to say. I don’t practice in courts anymore and have limited experience practicing myself. As an in-house counsel as well as working as a researcher in legal policy, I often interact with people participating in court proceedings in various capacities; court judges, as well as advocates, and I think feminist legal reasoning, and I’d like to make a distinction between feminist legal theory, which could touch every aspect of life, but feminist legal reasoning, specifically with regards to how to look at legal questions and reasoning them with an alternate view. It is very critical since the very issues that had plagued us for centuries change when looked at from a feminist lens. Sex work is a good example. We looked at it, but if you think about it, sex work during the time of the Kaushalya judgment was viewed as a public health issue, and today sex work is a right-to-work issue. In between, we had a lot of developments in jurisprudence, especially regarding privacy, which is not something that would not have been initially considered in a discussion about sex work. That creative reasoning of viewing sex work through the prisms of privacy and individual rights are all aspects of feminist reason, which respects women and the usual heteronormative, mainstream way of thinking.
That was an example of how it affects litigants; it helps articulate why something feels wrong, and legal reasoning is that. When a group of people thinks something is correct, it is probably because they haven’t experienced what was terrible about it. When you have the subaltern strata, including manual scavengers and sex workers, they feel something is wrong with the law. When they try to reason it out, things like feminist judicial reasoning help them articulate it rationally. It’s a good idea for lawyers, students of law, rights holders, and judges who decide what these rights will be. As a litigator, each of these stakeholders benefits from thinking differently.
Douglas: I’m a barrister in South Australia. When I was an exchange student at NLSIU, from where I knew Anindita, I subsequently worked as an intern at the alternative law forum in Bangalore and moved back to Sydney about ten years ago. Since then, I have worked as a solicitor, tipstaff, an Australian equivalent to a judicial clerk, and a research assistant to a retired judge, so I had a range of work experiences in and around the court. That significantly influenced how I conceived the project at its very early stages and how I approached my portions of rewriting the judgment. I think Anindita wrote more than half of it and is more than genuinely worthy of the credit of the first author.
I approached the task of writing my parts of the judgment very much as I would approach writing and making submissions in my day-to-day practice as a barrister rather than necessarily looking at it in terms of a philosophical structure in terms of the clear identification of underlying facts and a design representing the different integers of the legal arguments before the court. In some ways, it’s a methodologically conservative approach of viewing it very much a judgment to be decided upon case laws available in 1964 using very traditional legal methods. That’s how I’ve been trained and, ultimately, influenced by my legal practice. I think the combination of philosophical grounding and integration of legal theory with a relatively traditional method of articulating a legal argument. The opportunity to combine both perspectives made this project so unique and is easily my favorite project I’ve been involved in writing in my years of doing this.
Pranay: Moving onto the second question: Were there any competing alternatives within the framework of feminism in which the judgment could have been rewritten? Because I assume that when you started rewriting the judgment, you would have to make choices at several junctures regarding reasoning in various ways in which it could have been argued that it was unconstitutional?
Douglas: Anindita has much more to speak on this, so I’m going to talk briefly about the purity and pollution lens we used to examine the judgment. As a law student at the University of Technology, Sydney, where I did my LLB, I had the fortune of being taught by Penny Crofts, a leading researcher on the legal regulation of sex work and, in particular, theoretical approaches to it. As a law student, viewing sex work through a purity and pollution lens greatly impacted me. At the outset, when I first read the Kaushalya judgment many years ago, I very much read it as she taught in her class and how she approached the process from her philosophical perspective. As Anindita would note, that is by no means the only way the judgment could be approached.
Anindita: So, I’ll tell you briefly how we approached the project and the judicial tools we used, which were very similar to the ones used by both Broome and Subbarao. We did not deviate from the existing standard of judicial tests at that time, which was the rational classification test under Article 14. There have been many developments to the test now. It said that if the petitioner forms a class of people that have been treated differently than other groups of people, which has to be noted if it is a clear difference and if it has nexus to the ultimate objective of the act. If these two are satisfied, then that classification is valid. Applying that to removing sex workers from their place of operation based on administrative decisions that are not something normal people are subjected to. The distinction was quite circular: they are sex workers and are different. The assumption was that sex workers were a sort of disease or a polluting influence to cleanse an area deserving of this clean environment. Sex workers, by their very existence, justify their objective of keeping an area free of polluting influences. There was also the more dubious objective of the act to protect women and somehow remove some women from their place of work to protect other women. There was a distinction between polluting and chaste women, who were worth protecting and needed to be separated. We took the same test and interpreted it differently, and we could use the test and come to a different conclusion because of how we viewed the facts.
We took a more socio-cultural approach to see how these women operate in that world, including things that if they were removed from public view and continued doing their work that is likely to attract violence, protection of fellow sex workers or their families, they were more likely to be harmed. It is wrong to say that these women will not be protected as much as others. It is a very straightforward argument we could make so simplistically since the judges of that time did not see these women being right-holders. The big leap we took was to imagine them as right holders. That is the approach we took. We tried to break down the idea of pollution by a person. We broke down the idea that sex workers are sex work itself, and they are pollution themselves as opposed to individuals that engage in activities that may lead to pollution in some world.
We conducted the activity simply by bringing in a more culturally sensitive and socio-realistic view of the situation. That said, more nuanced approaches could be taken, maybe not during that time, since our reimagination had to be within the year when the judgment was passed. It could have gone much further. Let me give you an example: the judicial test could have been changed; we need not have stuck to the classification and rationale nexus test. These days we have dignity jurisprudence, where we directly think about how a particular law affects someone’s dignity, which could violate Articles 14 and 19. You need not have these neat little groups of people, compare the two, see if it matches the objective, and all that. It is a worthless exercise inherently, frankly. If you look at sex work, it is inherently a gendered and discriminatory world. To try and make sense of how neat or equal the distinctions are in comparison is a fruitless exercise since we are looking at a group of people primarily in their occupation because they are women. They are treated like the scum of society. So how are you supposed to use a syntax like a judicial test to understand their situation? It makes a lot more sense to look at it from a dignity perspective, where questions like agency, choice, and consent can be discussed because you are not comparing sex workers with other women and within their communities. That is not the focus of the Article 14 discussion. It becomes what sort of laws maintain a modicum of dignity for each sex worker, which changes from person to person. Automatically, the differences will be resolved since you stop looking at sex workers as a whole and instead only look at the petitioners before you as a judge and then try to assess their situation and decide whether the police or administrators did to them had preserved their dignity or not. That is a more effective test, but we didn’t go down that route since dignity jurisprudence is a much more philosophically advanced idea, which had some roots at the time but wasn’t as sophisticated as it is now. There is another example I can give you: the critical legal theory and dominance model, which I won’t go into much detail on. Still, it acknowledges that existing justice systems are inherently gendered and biased towards powerful people, that being upper caste males in this situation. A critique from this point of view is to ask why the bench is full of men or how the people deciding the laws and their interpretation have no real connection with the people it affects. None of them are women. Even if they were women, how much experience do they have about the lives of sex workers? This is a more structural critique of the justice system itself. Taking it one step further, we could have asked: “if sex workers are the problem, then who others are being harmed other than sex workers? Is it their clients, the sex workers, children, or a health issue? To do this, you have to consider what policy you are asking about; Is it criminal law? They boxed this whole issue into a criminal issue. This case asked whether it was criminal to practice sex work in a particular place or near a school? That’s an absurd question to think about! There are many things you can ask about sex workers and what they are doing on school premises, which could be seen as education, help, work, or labor, but we are looking at it as a criminal issue, which a trigger tendency is. Whenever there is a problem, we try to criminalize it. An easy example can be seen during the COVID-19 pandemic, where we could see police officers going around trying to throw people into jail for not wearing masks. It doesn’t solve the problem of the pandemic. If anything, it increases the risk if you throw people in jail! So, that is another feminist way to look at it: is criminal law enough to answer questions related to sex work? Now, the examples I’m giving you are fairly radical ways of looking at it, but we took a conservative approach. To answer your question, yes. There were many other ways of looking at it: intersectional feminism if Dalit sex workers were more affected than other caste sex workers, and the overall caste nature of sex work itself. These were the questions we didn’t delve into the judgment but could have been done.
Pranay: Thank you so much. I just had one very brief follow-up to that since that gave me so much to think about. Was there a creative impulse in either of you when the Indian Supreme Court eventually said that strict scrutiny should apply to paternalistic legislation instead of only using reasonable classification? It was noted later in Anuj Garg and a bunch of other cases. I understand that inter-temporality was a conscious choice to restrict yourself to the 60s, but did you think it would have been an exciting idea to apply newer standards here and see how it goes?
Anindita: Yes, we did. We spoke about it a fair bit but realized we picked Kaushalya because even the crudest application of the tests available at the time could have still done the job. That’s a more rigorous critique than giving the fancy new tests that took a long time to develop. That was our thinking.
Pranay: Moving onto the third question: typically, or at least this is the traditional perception around justice Subbarao, that he is a highly rights-centric, progressive judge. Whether it be his dissent in Kharak Singh, some of his opinions that eventually became the law in the state of Kerala v NM Thomas, or where he said that you couldn’t touch part 3 of the Indian Constitution, this judgment is sitting very strangely against that perception, what kind of an impact do you think it would leave on his popular perception or legacy.
Anindita: I agree with you; there is no doubt that justice Subbarao changed many things, including Kharak Singh, where his dissenting opinion formed the basis of law today. But this is not a judgment against only justice Subbarao, but I think it’s a telling reason why we need more representation in the judiciary. The system is problematic because only a group of 31 people in the supreme court will decide matters. There are two ways to ensure those 31 people make the correct decisions. One is to have the best judicial tests or laws; if they are framed keeping everyone in mind, then their application should be relatively straightforward. Regardless of how biased the judge is, the objective standards of the law will cut out the judge’s bias. While I say it, I hope you understand how unlikely it is to happen. The other way to check bias that can creep into judicial decision-making is to ensure diversity on the bench. There is no other way to do it. If you have a different kind of judge who is not an upper caste male, we don’t know how many of them were homosexual or heterosexual, but we know they were upper caste males.
There is no other way to look at it and say that a person can have so much empathy. We should ideally be training legal professionals to be empathic because it is their job to talk on behalf of other people, and one cannot do a job if they cannot place themselves in other people’s shoes. There are limits to empathy, and the only way to counter it is to have other people on the bench. This goes to say that someone as rights-minded as Subbarao could not imagine the life of a sex worker, which isn’t all that surprising since it is not a platform he connected with. You may tell me about the Deoman case or the Kharak Singh case concerning criminals and their rights. But there is still going to be something more familiar. He has imagined a criminal in his head as a man, and the standard of a reasonable man could be applied.
There is a connection between the judge and his subject. But sex workers are entirely removed from his idea of what rights-holders look like, and that is evident in his judgment if you read it since he is constantly equating sex work with something inviting disgust. If you consider another human being as another human being, it is unlikely their mere existence could evoke feelings of disgust. There is some sub-humanity there, which is why typically, the entire brand of human rights that he views an individual having cannot morally apply it as easily to a being that he doesn’t see as human. And here I know that I sound like I’m making a lot of extrapolations, but this is honestly a limitation of the human imagination, which is why if you have more women, people of various castes on the bench, the collective imagination of the judiciary keeps expanding with sets of qualities that each judge brings to them. So, it’s not a judgment on justice Subbarao; it’s more about the limited qualities of the current benches. Douglas, do you have anything to add to that?
Douglas: So, I think that while writing this judgment, we were acutely conscious of justice Subbarao’s reputation as a great dissenter or the defender of the absolutist or a broad approach to Article 19 in particular and his generally narrow approach to what forms of conduct would fall within sub-clauses 19(2) to 19(6). Arising particularly from what Anindita said, the issue is not that he took a broader view of what Article 19 meant in this case. Even as someone who took an expansive view of protections provided under Article 19 and a narrow view of the exclusions of 19(2) onwards, he nonetheless saw this as a case that fell within those exclusions. It’s not that he applied the wrong test. It is how Anindita said that his perspective was blinkered by his sense of sex workers as being pollutants and his unwillingness to see sex workers as rights holders, and this constitutional exceptionalism governed them that even as someone proceeding upon a favorable view of Article 19, he was unable to see them within the scheme of the provision. So going by Anindita’s original point, good laws are not enough. Even individuals with a broad interpretation of laws are not enough. What is ultimately called for is the sense of the judiciary that it does not view specific individuals as excluded from the polity. For example, justice Subbarao viewing Article 19 more broadly or favorably would have made a difference if he was unwilling to see the petitioners as persons who could legitimately call upon that clause for assistance.
Pranay: The last question is, do you think that subsequent Indian jurisprudence on equality or non-discrimination or other related Part III rights, it could be 19, 21, have, in their development or evolution, moved away from the thrust of the original judgment? When I was thinking about some of these developments and what could be the answer to these, I felt that dignity is now, by Anindita’s allusion, a proper standard by itself, since we have judge laws on that. Can you think of other standards we could deploy as tests today?
Douglas: One of the critical cases that we cited in the commentary which preceded the judgment is that of Sayeed Abdul Khair v state of Maharashtra, in which the most pejorative, derogatory language to all sex workers is used to justify exclusionary and regressive laws culminating in their denunciation. A kitchen is not made for cockroaches. Not even suggesting that sex workers were cockroaches by innuendo or by the suggestion, a more blatant dehumanization cannot be imagined. That judgment is from 1974, more than a decade after the supreme court judgment of Kaushalya. The rhetoric that we have singled out and criticized the part of justice Subbarao in Kaushalya was not in any sense a high-water mark of exclusionary language, nor can it be regarded as the worst point in the favor which then broke.
This attitude has continued to be expressed in subsequent Indian judgments. This relates, as you’ve noted, to the question of how subsequent developments, including the development of dignity jurisprudence, have affected our judgment and, in turn, how far has the effect of dignity jurisprudence redressed the attitudes that were singled out in this judgment and to hold up as disinfectant in this judgment. It goes back to what we discussed in the previous judgment; it’s not a question of better standards or more appropriate legal criteria. That provides part of the pivotal solution in viewing individual sex work. But the attitudes expressed in this judgment, where specific individuals were entitled to call the law for their protection and pivotally some who were not, in a sense divided between right-holders and non-rights holders as much as it is tough to draw generalizations about equality jurisprudence and dignity jurisprudence, given the sheer volume and breadth of case law on these topics. It is tough to say that these attitudes have been eradicated meaningfully. That said, I’m more than willing to defer to Anindita as someone with much more experience with contemporary Indian jurisprudence than I do.
Anindita: I’ll start by telling you that, at least in the field of sex work, the interpretation of the law has improved significantly. More recently, we had an order from the Supreme Court in the case of Budhadev Karmakar, which looks at sex workers as right holders, which is concessionary and seems like a giant favor is being done to sex workers. There is a lot of incremental change, but the judges have the luxury of not having to frame policy, and I don’t mean that it is a limitation. Honestly, it is a boon in many ways because no one wants to take up the matter of whether sex work should be legal or not, with the caveat being that sex work is legal, but the regulations around it criminalize it. That policy question is still not being engaged with in parliamentary debates is not happening, and bills are not being moved. Most of the debate is spilling over to the judiciary, and thankfully it has a limited lens to look at it so that they can focus on one thing at a time, and right now, it is more about basic rights, such as not getting harassed by the police. Now things are improving, but your question was regarding jurisprudence on equality and non-discrimination, which is a fascinating question with the developments coming up. So, if you ask me if things have improved, it is both a yes and a no. Yes, you are right in saying that dignity is a test that has been adopted, but let’s go back and look at equality again. We start with the classification test, then you have a lot of meandering, after which we come up with an arbitrariness test, which then became the manifest arbitrariness test when now there is a dignity factor; if you think about it, these are not objective terms. They’re subjective and more about the moral conundrums coming through and judges struggling to find reasonable frameworks to push out a morally correct idea, which is not a bad thing since that is a way in which laws evolve. We shouldn’t forget that dignity isn’t a golden bullet; it is as likely to be misused the arbitrariness or, rather, overused like the arbitrariness test is. You might lose track of what dignity means, especially because it is not even just an Article 14 concept, and the judgments we see using dignity are not always clear on their basis. It’s unclear whether fundamental rights arise from the inherent dignity of people or the virtue of people having dignity and having fundamental rights or if rights exist to protect the dignity of people, or is dignity one particular right different from other rights? These conceptual distinctions are not made. While I might sound pedantic, it affects decision-making because if we don’t have such understanding or debates about what is it as a value? Is it rights, is dignity a duty-based concept that we are trying to enforce, and what does dignity mean in India as opposed to anywhere else? If you don’t ask these questions, you will have an easy critique that dignity is a subjective thing that a judge brandishes around when they think something isn’t right, which can water down the importance of the word. We’re stuck in the same situation where we have to invent another word and start using that and hope it will get us somewhere. Yes, it is a good step, but maybe not. Also, there are other tests, such as the test of reasonable accommodation, which goes back to the original idea of equality as sameness. We are critiquing the reasonable classification test and limitation to identify two groups of people and compare them, which is a very simplistic way of looking at equality. Things like dignity give you a departure from that syntax by asking, “What are you preserving? Is it the point to treat everyone the same because it helps no one sometimes?” It is more about giving them opportunities or situations where they feel valued and can be their best self, which may not be the same or equal to someone else. That particular exercise I spoke about is what the judiciary is trying to evolve. Reasonable accommodation works out well in that case. The case I can give you is the case of Vikash Kumar v UPSC, a disability rights case and a well-written judgment that provides a reasonable and rational way to look at how differences can be accommodated. It is not about creating the same opportunity for people but giving people a decent shot, and not an equal shot, because sometimes, it is not practicable. Looking at sex work from this prism, which hasn’t been applied in other cases I’ve read relating to sex work. Things could be different in this case; people will start asking: what is reasonable for a sex worker, and what accommodation can we make for a sex worker that would be reasonable, not for a reasonable man? The reasonable accommodation principle is an interesting development that is a big step up from the Kaushalya times. Also, we have the case of Resham v state of Karnataka, which is the hijab case, where again we go to equality and sameness, where everyone has the same uniform, and hence, they are the same. We could be one step forward and two steps back. It isn’t easy to articulate whether it is correct or not. Still, I think that legal academia and general reflection on judgments is good since we can start picking out which judgment falls under which philosophical camp, so there is some consistency in application. I hope that answers your question
Pranay: As much as it could have been answered. Thank you so much! Any closing thoughts or general thoughts on how the process went and what you enjoyed most?
Douglas: I enjoyed doing the research, drafting, and presentation of our Indian feminist judgment project that I got to work on an article with Anindita Pattanayak. That was the best highlight of the process, and even if it had never been published, that would have made it worthwhile. I think it relates to much of what Anindita raised in her previous comment; our judgment is relatively conservative. It is not a million miles removed from the judgment that justice William Broome handed down in the Allahabad High Court, from which the state of Uttar Pradesh v Kaushalya resulted in the impugned judgment. It is possible to use legal rigor and traditional legal methods and be informed by our moral sensibilities as a method of revisiting the laws in force or even striking down unjust laws. As we reiterated throughout, the law is not itself enough without a sense of consciousness on the part of the judiciary of the societal context within which it operates and a sense of empathy and understanding of the experiences which differ from their own, which requires representation and diversity in the judiciary itself. The fact that we were able to achieve the correct result using conservative legal methods speaks to how rigor and structure and a coherent identified sense of what these provisions can stand for, without necessarily needing to give way to arbitrariness in the exercise of power, can serve as a meaningful check on state authority as much as the judgment is a triumph of imagination, critique, or radical perspectives in the legal system. It also demonstrates that it is not a competition between radical and conservative views of the law. Even applying conservative legal methods and the relevant tests in an orthodox fashion, the supreme court judgment in the case of Uttar Pradesh v Kaushalya is indefensible. The methods we employed conclusively demonstrate that.
Anindita: For me, I think, apart from the fact that Douglas single-handedly improved my writing skills in this exercise. I believe what Douglas said is true. Judicial reasoning is an exercise in empathetic imagination. We are asked to be empathetic and imagine what would be right in a scenario whenever we think of a legal argument. That’s how we were taught to write arguments since you’ve already been given a side. But in a judgment, you have to think about what is right, which requires you to imagine just a bit harder. The exercise of imagining yourself as a judge at a different time and dealing with different circumstances pushes the skill. It makes you better at imagining another person’s life, not just the petitioner but also the judge, and inherently makes you a better legal professional. This has been an exciting exercise, like Douglas and I would joke that this is legal science fiction and should become a whole thing! That would be my last thought on this matter; it was good for me but not so good for the sex workers.
Pranay: I think that’s a great note to end this on. Thank you so much for taking the time out of your busy schedules for this interview, and also, thank you so much for the article. It was a genuine pleasure to read; I’m sure many others feel that way. So, thanks again, it was a pleasure.