The FemJustice Legal Centre seeks to increase the use of feminist lawyering techniques in the legal sector, with a particular focus on increasing feminist leadership among legal practitioners, law students and other individuals working with survivors of gender based violence. We believe that the legal field has massive potential to advance the feminist and gender-rights movement. In order for this to be successful, legal approaches with a gender-sensitive lens need to be employed.
Rather than just filling the legal aid gap in India, we work to provide a space where the process of seeking justice can be a transformative tool to combat gender-based crimes, while simultaneously recognising the survivor-client’s agency, lived reality and desires for justice. This project hopes to change the narrative around gender-based violence by distilling theory into practice.
This interview series seeks to take the conversation to professionals who have created a tangible feminist justice responses in their field of work. The objective is to open up space to explore various different forms of feminist justice, across personal and professional spaces looking as interpersonal and systemic challenges.
We spoke to Deya Bhattacharya, a human rights lawyer, researcher and writer. She holds a B.A. LLB. (International Law Hons.) from KIIT School of Law, Bhubaneswar (India), and an LL.M in Human Rights and International Justice from Central European University, Budapest (Hungary). In the past, Deya has worked at Swasti Health Resource Centre (Bangalore), The Hindu Centre for Politics and Public Policy (Chennai), PILnet (Budapest) and the Open Society Archives (Budapest). Deya’s primary interests lie in transitional justice, women’s rights and peace-building. Currently, Deya works for Women’s Fund Asia, where her work largely involves grant-making and management of grantee-partner relationships in the region. When she is not working or traveling for work, Deya likes to read and write about what she reads; she also loves to bake and to learn new languages.
OFC: Having worked extensively across countries for the emancipation of women, in terms of building their legal rights and in securing their socio-legal freedoms, what does feminist justice mean to you?
DB: For the first couple of years in law school, I didn’t really know what to do. I had worked with a couple of organisations when I started to notice the gap between what the law is and what we think justice should be. I realized that we don’t think socio-economic and political changes impact law and justice. I started law school 11 years ago so it has been my learning that feminist justice is really an intersectional process. It is not just for women. Women’s rights intersect with so many other identities. It is for everyone impacted by such intersection. When I began law school, women were at the center of my idea of feminist justice but now I know the spectrum has expanded.
OFC: What role has feminist justice played in your work? How has your vast body of work envisioned feminist justice in practicality?
DB: I will not just talk about work but also include my everyday interactions with people. I ensure everything I do is true to my principles. Feminist justice has ensured that the way I see things has become more refined. It’s a very conscious process. The first thing I ask myself in my interaction is if I am treating the opposite person correctly. I ask myself if my privilege is showing. I’m constantly trying to be aware of how I work, and how I behave with people, always keeping in mind the privilege I carry.
In the organization where I currently work, we have incorporated feminist justice principles into our work which make it much easier. In the past, when I’ve worked for organisations which haven’t necessarily done so, I’ve found that there has been a conflict between the work to be done and my personal principles. It is difficult to maintain the balance in such environments.
OFC: You worked on preparing a National Strategy Plan for promotion of women’s economic rights for the Kabul Conference on Women’s Economic Rights that became a campaign to build basic economic rights for women into the Afghan constitution. Can you tell us a little about what modern day constitution building really takes and how you think your values as a feminist impacted you work on this?
DB: I don’t remember much of the project as it was way back in 2012. Following that project however, I did substantial work around women’s rights and worked and transitional justice. A lot of the work in transitional justice is about constitutional justice and ensuring that women and marginalized people have a voice. Any constitution enshrines the bare minimum. The concept of a constitution is a very utilitarian idea, which often brings with it the idea of formal equality. Most constitutions across countries have this idea of formal equality. Feminist justice adds the idea of substantive equality to a constitution. Feminist justice ensures that substantive equality doesn’t just remain on paper but is in fact transferred to reality.
Leaning away from constitution-building for a moment, let’s take the example of property law for women. In Nepal, sons and daughters are treated equally in the bequeathing of ancestral property, at least as far as the law stands. Although the law is such, the sons procure a waiver from their sisters who sign away their right to the ancestral property, leaving it all for the sons. There are grassroots level organisations fighting to prevent women from being arm twisted into giving away their rights. Such organisations conduct awareness programs to ensure that women are aware of their rights and legal procedures. But again this is a classic example that the law can only do so much. The socio-economic reality is that women do get disadvantaged to their detriment.
The benefit with feminist justice is that it breaks away from the basic requirements that a constitution fulfills and adds the substantive equality element to systems.
OFC: While you were preparing training modules for litigation strategies in Afghan courts/delineating parts of their criminal code, what were the practical difficulties in finding alternative solutions to offences which are criminal, in terms of both law and religion (for example zina)? Did these solutions fall within the contours of feminist justice?
DB: The idea in this project was basically to look at the interpretations of certain personal laws. Here, we delved into Sharia law, the Constitution and into feminist interpretations of law. However there are intersections of women’s rights with institutions like religion or marriage which might be inherently patriarchal which we must deal with. Religion is patriarchal because men used to call the shots. Yet there are theocratic countries in which we have to work, where religion is an institution central to life.
OFC: In preparing for the same project, how has using Sharia-based arguments in women’s rights litigation changed the way in which women’s rights are defended in Afghanistan?
DB: This is a fairly old argument in human rights. The purpose of this project was to look at women’s rights from the same lens the rest of the country used, but to change the way women’s rights were viewed. In a country where religion is an important institution, and this doesn’t refer to just Afghanistan, it helps to go through the religion route. Your arguments are heard because they are based in an institution the people understand and respect, otherwise you do end up questioning the authority of certain people and set yourself up for failure. Using Sharia-based arguments therefore acts as a tool to amplify the voices of people there. And it’s an important tool too. For instance, one of the Pakistani activists I’ve worked with, was compelled to flee the country because she went beyond religion. In many of these countries, human rights is a dangerous subject to broach. Approaching it from the religion perspective is much safer.
OFC: Similar to Afghanistan, Indian law governing marriage, divorce, inheritance and succession is also divided on religious lines creating a unique set of challenges to overcome. In your experience how fruitful is such law when organised on the precepts of religion? Can there be room for introducing a feminist justice perspective within such law?
DB: Absolutely. There is significant room to include feminist justice perspectives in personal law, even if it is organized by religion. A few years ago I would say the religion and law cannot co-exist but now, looking back, I definitely feels there is room for such a perspective to not just be accommodated but also for feminist justice to reclaim religion, marriage or any other law as its own.
It is a very long term plan which might not even happen in our lifetimes. For instance, in 2014, the Supreme Court of India recognized the third gender, and yet in 2019 there is no law to protect their rights. Further, now in 2019, there is the realization that there are several other genders and that it is a spectrum. In such situations, like others, it is very difficult to reconcile religion with law. Religions still do not recognise the existence of a third gender, or of homosexuality, even if the law might.
Despite all of this, it is possible for feminist justice to introduce substantive equality into religion. I think with the introduction of the right people into the system it is possible to have a feminist justice approach within personal law too. While I agree that the whole idea of a uniform civil code is very appealing, I doubt its practical possibility. Besides, even if it is possible, there remains nothing to suggest that the same problems will not persist.
For instance, I worked with a Sri Lankan lawyer last year, who was the only woman lawyer in her district of Puttalam, near Colombo city. She is the only lawyer who employs feminist justice principles into her work. So I do think the system currently is very nascent and there is a lot of room to introduce feminist justice within it, but it has to be done by the right people.
OFC: Tell us a little about your work as a Human Rights Documentation intern with the Open Society Archives, Budapest. Based on your work in analysing the archival evidence of the mass graves in Srebrenica to build evidence on sexual violence/forced migration, can you identify patterns/similarities in regional instances of sexual violence and forced migration? Do the feminist justice solutions to such problems differ in their forms?
DB: When I was with the Open Society Archives, I sifted through the evidence of dead bodies of the mass graves in Srebrenica, for three months. It was basically looking at the remains of people and their photographs and possessions to create a memory project of sorts so people knew what had befallen their loved ones. It was rewarding considering my thesis was on sexual violence, but it did become a very dissociative process. People continue to find mass graves, and the whole process of identifying the graves and contacting the family has become dissociative.
I absolutely think there are patterns to regional instances of sexual violence and forced migration. The idea of othering is a pattern central to mass violence. I actually found a lot of similarities between Srebrenica and the Gujarat pogrom in 2002 where sexual violence had become a weapon leading to the othering of the women. Similarly there was the othering of the Bosnian women and the violence against Tamilians in Sri Lanka which have similarities. The idea is to heap labels on top of other and then oppress the most marginalized. This is the characteristic of any mass violence project.
I do think that feminist justice solutions can be made to exist but a lot of it depends on checking our privilege. Even in India, there are so many layers of marginalization that you discover when you dig deep. One must continuously recognise there has been othering, even in India. For example, we are open to Dalits today but are we open to Dalit trans people? It is necessary for us to continuously update our knowledge and check our privilege.
OFC: One of your core beliefs is that the answer to women’s development lies in turbulent but nascent justice systems. How are nascent systems able to withstand years of cultural, maybe colonial pressure to ensure women’s rights are placed on an equal standing, and that feminist justice is tangibly ensured?
DB: There is a passage I have read in Conflicted Democracies where Jacques Derrida is quoted: “All nation-states are born and found themselves in violence…The foundational violence is not forgotten. The foundation is made in order to hide it; by its essence it tends to organise amnesia, sometimes under the celebration and sublimation of the grand beginnings.”
The idea is to continuously forget and remember. I think this is distinctly applicable here. Nascent systems are nascent because a pattern has been broken. For instance, consider the example of the Arab Springs, where old systems were crumbling, leaving space for feminism to take over. Yet there was no mobilization which took place—or even if there was mobilization, there was no leader to guide the mobilization.
OFC: Speak to us about your work on the Kashmiri half-widows at the Hindu Centre of Politics & Public Policy. What are the future consequences of the Kashmir shutdown in light of truth commissions helping build reconciliation in Kashmir?
DB: I was there in 2014-15 and it was still possible to do something back then. Now with the shutdown it is unlikely. Even without the shutdown the Kashmiri half-widows were in the shadows. They were entitled to receive their extra share, released only if they could prove that their husbands were dead when in fact they had no knowledge of their whereabouts. Compensation is a loaded solution where the government takes responsibility. It is also a funny sort of division process as it is dictated by Muslim personal law. For the most part, the Kashmiri half-widows have remained a bargaining chip for political parties. It is extremely difficult to extract information about the missing husbands and their half-widows from the District Collectors. The Kashmiri half-widows have very little recognition.
Back in 2014-15, there was still some space within the state to get them recognised. Right now in the shutdown that’s not possible. The first thing is to stop the shutdown. Unfortunately, the larger community interest always comes before those of marginalized. With each crisis, the interests of the marginalized are pushed further away. I’ve done some research on truth commissions—its very difficult because fundamentally the people have one truth, and the government another. In my experience, for truth commissions to work, the truth has to be common for healing to take place and for transitional justice to follow. Frankly, I don’t see this happening.
OFC: What are the peculiarities a legal/administrative justice system in Kashmir would require with respect to the plight of its women? What role does feminist justice play in setting up an effective legal/administrative justice system?
DB: The legal/administrative justice system in Kashmir is like any other system in turmoil. For example, a lot of the cases in Kashmiri courts revolve around encounters. Take the 2010 Macchil case where 3 civilian youth were killed in Kupwara district by armed forces. It was made out to be an encounter even though it seemed to be a targeted killing. In 2017, the accused were cleared. In such a process, there are very few women who go to court and demand their rights. The women who do go to court stand in their capacity of wives, mothers and sisters of men who have suffered. It is still a very masculine system. Women are still survivors of the men hurt by the regime.
As a feminist who lives in urban city, this really bothered me. Women are not at the forefront of what happens. It is the community which is hurt by sexual violence not the individual. Women are not seen as active subjects of law, and this is a glaring reality in Kashmir. Even Parveena Ahanger, the Founder and Chairperson of the Association of Parents of Disappeared Persons in Jammu and Kashmir, is mother of a ‘disappeared’ son. The harm done to her is not a direct harm. In my time there, I met wives of such disappeared men who had gone through the entire rigmarole of the law just to find their husbands. These women had probably been assaulted, sexually and otherwise, in the process but these were not the harms that occurred to them. The harm they sought to relieve was that the State had wronged their husbands.
Frankly I don’t know what role feminist justice can play in setting up an effective legal/administrative justice system because I continue to question the way our courts have been set up. Even our Supreme Court today has barely any women judges. At this point all we can do is the basics—getting more women in the legal system, refraining from taking on certain cases as lawyers, increasing the number of women lawyers at the district court level, and creating awareness in law schools. Little things take the prejudice forward. We can keep trying to set the system up but we can’t ignore that it is flawed inherently. Much depends on who you bring into system and how they can affect change.
OFC: What is the direction feminist justice ought to take today?
DB: I think there is a lot of space for feminist justice to expand. I do think however that people who occupy space usually continue to occupy that space. I think we must reinforce the idea that it is okay to step back and let other younger people to step in. The inherent idea of being feminist is to make your mistakes and learn. Nobody is born a feminist. Bring more people in. There is strength in numbers. Let a Dalit talk about their situation. Amplify their voices. I actually stopped writing a year ago because I realized I was stepping on the toes of people who ought to be writing. There are so many intersections of feminism which need to be appreciated and understood.
Maelle Noir is Program Officer at the Feminist Justice Legal Center, One Future Collective.
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