Excerpts from First Lotika Sarkar memorial lecture delivered by Prof.Upendra Baxi, Emeritus Professor of Law, University of Warwick at Faculty of Law, University of Delhi--------------------
It is good to meet on the first anniversary of Professor Lotika Sarkar’s death. Hers was a life lived well. And she would have wanted her friends on this occasion to greet her with a smile, not tears. Still, the ache remains. I feel somewhat like Adlai Stevenson (on losing his Democrat nomination twice over) who said- ‘it hurts to laugh but I am too old to cry!’
The impulse to shed tears stands accentuated by the sad demise of Professor Vasudha Dhagamwar on 10th instant; Vasudha was a good friend and dear colleague, though occasionally she did not share my overt enthusiasm for Lotika Sarkar.
I am now incidentally the sole survivor of Mathura Open Letter to Chief Justice of India! I was also heard to say to their Lordships in the petition against the Shah Bano Case that I was the co-survivor with Lotika Sarkar—the other petitioners Tara Ali Baig and Madhu Mehta, both adroit human rights activists of the yesteryear, having passed away---; now I am the sole survivor and there is no ‘danger’ of judicial re-visitation of that case! Indeed, this new habit of being the sole survivor is a bit irritating!
Since I have mentioned our Shah Bano petition, it might be worthwhile to say in an aside, with poet Thomas Gray that
“Full many a gem of purest ray serene
The dark unfathomed caves of ocean bear:
Full many a flower is born to blush unseen
And waste its sweetness on the desert air"
In other words, our Supreme Court is the only apex court in the world which wields the power to kill cases—power not to bring these for proper hearing! Think paradigmatically of course of the Kesvananda Bharathi petitions: which actual petition out of the six was decided upon in that case or even thereafter?
Lotika Sarkar, or ‘Lot’ as I fondly called her, was also a ‘gem of the purest ray serene’ and a flower that she was she refused to ‘blush unseen’ and converted ‘the desert air’ of the Law School into streams of fresh air! Lot enlivened the Law School, in big ways and small.
Generations of now senior lawyers and Judges still regard the School as Lotika Sarkar law school. They name it so because as her students they first learnt the two, and true, meanings of academic freedom: the freedom to teach and the freedom to learn. She emphasised the latter with students and the former with the Deans and Heads! And Lot encouraged the students to learn the law as they wished; for her, the syllabus never cast in stone was but a mere opportunity to co-learn, as those fortunate enough to attend her seminars called Manusaha know well.
And as Professor Amita Dhanda recalls it in an obituary note, she never imposed her socialist ideology or any ideology on students; her fondness for ‘Marxist’ school, on particular for William Bonger (who early last century BC offered a materialist interpretation of crime and punishment) was evident to all but she never proselytized, let alone impose, it in the classroom or the Faculty. That is a mark of a true teacher and Lot was a teacher above everything else.
Lot was a fighter against the establishment; the ‘establishment’ was also a symptom of the ‘system’ and systems were meant to be combated! This made her very popular with students and most of the school. Almost everyone went to her door, with real or fake complaints and she made the former a battle cry against the establishment. She was the popularly anointed Ombudsperson of the Faculty and she just loved the role! I speak of course as one of the victims of hers: as a young Law Dean (1975-1978),I know the opposition I encountered from her, although for the first and last time she had accepted the in-charge-ship of the Campus Law Centre then ,only to oppose the Dean in that capacity!
There are many stories to tell about Lot’s relationship with me. Of course, both of us knew about stories that our friends and colleagues put across; these never bothered us as we knew these to be untrue, and occasionally malicious. This is scarcely the occasion to narrate these but a couple may be mentioned. She and Chanchal Sarkar liked my monograph length book review of Granville Austin (and later introduced me to him); and she gave me a nice present on publication of my introduction to Jeremy Bentham.
The many presents she gave me (and I am sure to some other colleagues) were the handiwork of Spastic children; she devoted much time to the Spastic Society of India. Her bond with spastic children was so great that she was a ‘Di’ to them; and she pursued me as the Vice Chancellor of Delhi University when an elite college refused to give a spastic young person the services of an amanuensis on the specious ground that he may plagiarize!
Late in her faculty life, she travelled by bus; she was one of the few Professors to do so; I occasionally met the Triva Mudirka from IIT at Hotel Vikrant shop. It is amazing that we were able to coordinate the timings even in the absence of a cell phone!
On Unlearning I wish to speak today of unlearning the law with Lotika Sarkar, a title which might puzzle you in the first instance! If learning is a difficult enough notion, its Siamese twin-unlearning—is even a more difficult one! Siamese twin it is because to learn something you have also to unlearn something else! If learning is also unlearning, how does one unlearn without learning? What, in this context would relearning mean?
If learning /unlearning/relearning are difficult categories, the law is less not so. In advanced liberal thought—that is where human rights are considered mediatory devices standing between the state and the individual, and the state in relation to other states, or the community of states—the question is about responsible freedom. As Mohandas Gandhi used to say the question of just freedom but that of just freedom is the most of important one. In some senses, the A to Z (from Agamben to Zizek) thinkers are concerned with the same question.
There are many difficulties with the notion of rights and human rights. Extending the feminist political philosopher Wendy Brown, human rights as all rights are at once
". . . rights as boundary, and as access; rights as markers of power, and as masking lack; rights as claims, and protection; rights as organization of social space, and as a defence against incursion; rights as articulation, and mystification; rights as disciplinary and antidisciplinary; rights as marks of one’s humanity, and as reduction of one’s humanity; rights as expression of desire, and as foreclosure of desire."
Lot was no philosopher of law but as a practical thinker she too was concerned with responsible freedom. For her ‘unlearning’ the law meant at least meant, in my words, maximizing state free as distinct from state filled spaces. But she, too, suffered from the paradoxical character of rights!
Educational theorists have wrestled with these difficult questions about learning and unlearning, questions that are in a sense circular ones. There is no thing as learning in the abstract; one learns something always in context and this particularly true about skills and competencies. Lotika changed the context of learning by emphasizing the freedom of learners to learn.
And among the skills and competences she included learning what the law diminished and excluded and why so. In this sense, let me say that the Cambridge and Harvard don in Lot learnt the law but she truly unlearnt it in Delhi! By this I mean that she learnt what the ‘common’ law and the ‘uncommon’ law was like in the United Kingdom and the USA, she pushed the bounds of postcolonial legality in teaching law in Delhi
She unlearnt the law in many ways.
One way was to engender the law: this was the very title that Amita Dhanda and Archana Prasher gave to a festschrift dedicated to her . As the grapevine grows, the then learned Chief Justice of India who released the book referred to the title by saying that the book was all about endangering the law! In this he was inadvertently right: the universal patriarchy embodied in all law can be countered, if at all by engendering the law and that necessarily endangers the law as we know it. In this respect, Lot was clearly, but constitutionally, seditious.
We also unlearn the law when we focus on law reform. And we unlearn law reform when we chose to distance ourselves from the reform of lawyer’s law but engage with social law itself. Reform in lawyers’ law is technical law reform; it aggravates or eliminates the difficulties experienced by lawyers and judges in the administration of justice. Of course, that which is technical is also social in a broad sense; yet, the technical does not directly aim to enact a behavioural or dispositional change on the part of social actors.
For Lotika change was of the essence of all law. She chafed at the thought that all law, including the postcolonial, was colonial because it was primarily patriarchal. The law colonizes women’s bodies and consciousness; in it, the master–signifier is all male. She searched for the ‘Male in the State’ (an expression of feminist political theorist Wendy Brown) and fought to displace it with all her fury and might.
Towards Equality
An imprint of the early struggle is readily available in the report of the National Commission of Women--Towards Equality. That report was submitted on December 31, 1974, on the eve of the first international women’s day, to Professor Nurul Hasan, an eminent historian and the then Minister of Education; at that time; we were not so modern- we did not name our ‘education’ as ‘human resource development’!
The Report contains a wealth of information and recommendations; and veritably, it is a constituent assembly of women experts at work. Lotika was ably assisted, in study committees, by lamented Professors B. Sivarammaya and Raghunath Kelkar and I contributed a paper on reservations, which became the dissent note on the subject of Professor Lotika Sarkar and Vina Mazumdar.
It is easy enough to say where Lot’s special contribution lay. The Committee as a whole derived its understanding of the spirit and the letter of the constitution from Lot and I am sure that the emphasis on equality as a core value of the constitution by the Commission was inspired by her.
She was not a feminist theorist but concerned with finding solutions to immediate pressing problems through the law. She was attracted to socialist feminism but equally engaged with the constitution of India, which she regarded as socialist.
Did she have a well worked out theory of the state? The answer to this question is a resounding ‘no’, if by theory of state we mean a systematic analysis and account of sate formation. An implicit ‘theory’ of state, however, cannot be ruled out in Lot’s corpus. She believed in a constitutional state that is a state governed by the rule of law; she also knew that the political state that thrives on competition for power was somewhat indifferent to the constitutional state. Her strategies comprised law and education: times without number, Towards Equality seeks to constrain the political state by new laws respecting women’s equality and seeks as well public citizen constitutional education favouring gender parity and equity.
In this respect, Lot was a liberal legal feminist par excellence. She believed in law reform as a means of changing social attitudes and behaviour and she read the Indian constitution as a charter for social reform. Hers was a liberal and women friendly reading of the Constitution. She of course realized that while women’s problems were structural, law reform was piecemeal and slowly erratic; that is one reason why the Commission and she stressed education of the elite as well as the laity. And although much in sympathy with the Left critique of the Indian constitution as being pro- bourgeois and pro- landlord, Lot viewed it as a site of normative and institutional antinomies rather than material contradictions. Like almost all Bhadralok Bengalis, she believed in Parliamentary communism. I may mention her later good work in Bankura, West Bengal, where alongside with Veena Mazumdar and the CWDS teams, where she deployed law as a means and end towards women’s participation in public affairs.
Open Letter
This is a long and complex narrative, and what follows are bold strokes! All of us came to age in this struggle against violence on women and this was a third moment of thinking and feeling like a woman- or in other words practicing constitutional sedition against the law. The best way, perhaps, in turn is to speak of different moments of the Open Letter struggle.
The first moment was reading the case in 1979(I have the ‘bad’ habit of reading judgments of the courts!)—this was the Supreme Court of India speaking to the effect that rape by two police personnel of a sixteen year tribal woman, who had gone to the police station to register a case for her missing brother, was not rape at all since there were no marks of resistance on her body! This despite the fact that the Bombay High Court on appeal had held otherwise and the two police constables, held guilty of the offence, were suspended from office.
The second moment was prolonged and weighed the question what should be done about this obvious yet extreme instance of judicial patriarchy? I suffered all alone with this question. A newspaper article would not simply do, even if the folklore of contempt of the court which then prevailed were to be overcome. Nor would a law review article do, because it would take a few months more and even then it would attract a specialist and a limited specialist audience. All available forms of communication were themselves patriarchal. It was a flash of agonized inspiration when I thought of an Open Letter to the Chief Justice of India. Such a letter was never written before, or even since. But in act of courage and sorrow I drafted it.
The third moment was to have the Open Letter being signed by some colleagues. I was still new to Indian law teaching and I had, at that point of time, never ‘taught’ Indian evidence and criminal law and procedure. Such was our legal education then at Bombay that apart from the Indian penal code, the rest was not considered necessary! Having learnt my jurisprudence with Roscoe Pound, I still believed that ‘taught law is tough law’.
Lotika Sarkar and Vasudha Dhagamwar were clearly the first ones to approach with a request that they co-sign the letter. Both agreed enthusiastically and it was at Lot’s persuasion that Raghunath Kelkar had agreed to the text. All of them were initially concerned about an Open Letter and it required little persuasion on my part to suggest that it was the only way to go, even when it meant that it risked the contempt of the court proceedings. Later, and happily, Lot and Vasudha acknowledged the Open Letter to be their own work; this ownership was important to what was after all a joint and cooperative venture.
The draft Open Letter ended by saying that the Court realized in future the error of its ways and overturned the principle of this ruling; there was some discussion amidst us as to whether we should ask for some specific remedy; it was however an article of faith with me that criminal law decisions by courts, extending to guilt and punishment, should not yield to public sentiment or opinion. Fortunately, all of us ultimately agreed, little knowing that we would have to later to bear the brunt of women’s organizations that wanted to file, and actually did so, the review petitions which were subsequently dismissed. Lotika Sarkar had to particularly engage in quiet diplomacy with friends that proved in the end unsuccessful.
The fourth moment was particularly difficult. That pertained publicity. The text of the Open Letter was about four long pages in stencil (at that time Xerox was simply unheard of in faculties!) and Mishraji (of the case material fame) constantly converted ‘pubic’ into ‘public ‘hair! The news editors were simply not interested; they had their own reasons; one was the fear of contempt at the Open Letter and the other was that since the rape occurred many years ago, in 1972, the Open Letter was surely not ‘news’. To my surprise, the co-signatories to the Open Letter were not inclined to pursue the editors; I fought a lone battle arguing with some editors that they should differentiate between the folklore and the fact of contempt, a distinction that I pursued later in my Antulay book. I further argued that democratic ordering dies sure death when injustice ceases to be news.
These arguments were of no avail! Fortunately, two unrelated events helped. Professor Manubhai Shah (the Indian Ralph Nader and funder if the Consumer Education Research and Education Society, Ahmadabad) reunited me with Smt. Charubahen Yoddha, of the Gandhian Jyoti Sangh. As a result, I ended up (in my broken Gujarati and Hindi) addressing the women workers on Mathura Open Letter. The small reportage that ensued attracted the attention of national women’s movement as well as the press. While she liked the attention, I am not sure that Lot liked very much my addressing the Jyoti Sangh!
The second event related to a request to contribute to inaugural issue of Progress--the Journal of United Lawyer’s Association, a leftist lawyers association. All l could think of was the text of Open Letter which the editors decided not to carry, On the inaugural occasion, Chief Justice Chandrachud was heard to say, in the presence of Lot and myself that he would have been happier if a journal so entitled were to carry the text of the Open Letter!
The fifth moment was troublesome: not merely was there a barrage of steady criticism from senior faculty colleagues but also from the academic legal fraternity at large. Vasudha replied to Salman Khurshid in the pages of student publication at Oxford; the Supreme Court Cases which in its halcyon days carried the full text of the Open Letter also carried a rebuttal from a law academic, then teaching in Nigeria; but perhaps the greatest challenge came from Krishen Mahajan who in a Sunday edition of Hindustan Times (of which he was a legal correspondent) criticised us for not reaching out to Mathura, upon whom the impact on her was most lethal. She was, it was alleged, in sex traffic network having been spurned by her husband on hearing about the case.
Lot was most upset because Krishen never raised the matter with her; she expected her former student such a discourtesy, even when she respected his freedom of speech. At any rate, Dada Chitale of the AIR at Nagpur was kind enough to respond to my urgent call and send a law reporter to Chanderpur to verify the story: we learnt that contrary to newspaper report; Mathura was accepted by husband and was relatively leading a peaceful life.
The seventh moment was equally crucial. We decided to make law reform proposals and eventually prepared a memorandum for Parliament. Vasudha disagreed with some of our early recommendations and disassociated with the group for reasons explained in an article in the Mainstream; and Raghunath proved obstinate and even dogmatic on many points; his knowledge of criminal law and procedure was unrivalled and eventually proved of great assistance in our submissions to the Joint Select Committee of Parliament.
Lot and I ‘lobbied’ members of Parliament: we divided MPs whom we approached on linguistic lines; she largely met Bangla speaking MPs and I met Guajarati and Hindi speaking ones! I will not here go into the details of lobbying—an expression we had some knowledge of from American law—since I have elaborated this elsewhere. Lot bore the expenses of printing the memorandum as she knew by that time that I was living on a shoestring budget; I mention this only to show that civic activism s deeply sacrificial in character.
Thus was borne the modern Indian law on rape that totally revised the old law. We were successful inter alia in introducing harsher punishments for gang rape and rape, reversing the onus of proof, the medicinal examination of the accused, and the conception of ‘power rape’, that is rape by ‘virtue’ of dominant social, economic, or political position. We failed on outlawing marital rape, as even the most progressive women leaders, inside the Parliament and outside, did not support us; that was task performed by the Verma Commission in 2013; even so, the legislature did not accept the recommendation.
Towards a Conclusion
I have already taxed your indulgence and patience; so, the story of Agra Protective Home Case must unfold another day. Although the case is listed in my name, it was always a joint venture. It was the first social action litigation started by law professors .There was never a hearing that Lot missed, although she rarely wanted to argue the petition herself.
We made several innovations to states of affairs. Although the judicial announcement of public standing was later made in the Judges Case, the actual proceedings in Agra Home Case already acknowledge the system of petitioner in person who can file letter petitions writs and argue for people’s rights when no right of hers were violated.
That case was also a precedent for socio-legal commissions of citizens who will do the fact-finding for the highest court in the land. Lotika, Chanchal, Bani del Roy, and I went to Agra where we were joined by Dr. Sodhi (whose letter to the editor Indian Express we clipped to our letter to the Supreme Court). We examined the Home and were shocked to find that about 100 women lived in a room not much larger than courtroom No 2 of the Supreme Court! They lived in utterly insanitary conditions; they were rarely medically examined; most of them suffered from STD; and as later learnt also were AIDS patients. The Court also innovated a procedure where under the District and Sessions Jude, Agra, was to visit the Home and file a report every month; Lot carefully studied these reports and it was on her suggestions that further litigative strategies were planned.
The case went on and though Lot disapproved of it, I was heard as saying that we will stay litigating as long as the State of Uttar Pradesh took to learn the alphabet of the rule of law! It was particularly difficult to argue in person when I assumed the office of Vice Chancellor, Delhi University and upon my sojourn at Warwick, the case was handled by Mr. (now Justice) Murlidhar, first before the Court and then before the National Commission of Human Rights, where it still dwells under the scrupulous care of Mr. Venktaramani, a senior counsel.
This has been a short story of my ‘unlearning’ and ‘relearning’ the law with Lotika Sarkar. In a sense I was her student, though born into the Faculty of Law only as a Professor. Her close association with me was a matter of privilege and an honour.
I continue to miss her; and I hope you would have glimpsed her many-sided personality through these few remarks. The Campus Law Centre would do a signal service to Lotika and the Faculty if it were to maintain the tempo of the memorial lectures. Memorial lectures in India often lose their memory; let this not happen to Lot.
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