Interview/ Indira Jaising, senior advocate
At a moment when India’s federal balance is increasingly contested and personal liberty appears to hinge less on principle than on process, senior advocate Indira Jaising offers a stark diagnosis.
In an exclusive chat with THE WEEK, anchored around her book, The Constitution is My Home, Jaising situates these developments within a broader pattern, the centralisation of power, the weakening of institutional safeguards and a creeping acceptance of the unconstitutional as routine. Excerpts:
Q/ You describe the Constitution as your home. At a time of such institutional strain, does that home still feel safe?
The values of the Constitution are still intact. There is no other sanctuary we have. But, yes, I have also said that the Constitution is in danger of being repudiated by those entrusted with its custody. So, while it remains my home, the space where I live and work, it is not untouched by threat. As citizens, we must see ourselves as its defenders. Safety, therefore, is not guaranteed; it is something we must actively preserve.
Q/ Your book’s title is deeply personal.
It comes from my own experience of identity. There is no state in India called Sindh, and I am a migrant. When someone asks, “Where are you from?”, most people can answer through their linguistic state. I cannot. That absence forces you to look elsewhere for belonging. For me, that belonging lies in the values enshrined in the Constitution. That is what gives me identity; so it becomes my home.
Q/ What is the biggest threat to the Constitution today?
The normalisation of the unconstitutional. When actions that violate constitutional principles begin to appear normal, and, worse, are perceived as legitimate, we are in serious trouble. This is not just the responsibility of the state. Society at large has allowed this shift. Civil society has pushed back, but it faces extraordinary levels of persecution. Ultimately, the judiciary becomes the last frontier.
Q/ Do you believe the judiciary has lived up to its role as the guardian of fundamental rights?
It is not a question that allows for a simple answer. Across governments, past and present, there has always been a tendency to shape the judiciary in the image of those in power.
We saw this during the Emergency, when the judiciary failed the country. What we are witnessing is a continuing struggle—civil society trying to reclaim judicial independence and the judiciary trying to preserve it. This tension is not new, but it is persistent and unresolved.
Q/ Has it become harder to argue civil liberties cases today?
Absolutely. The moment you take up such cases, you are branded anti-national, obstructionist. These are narratives, and they are entirely bogus. But they create an environment where advancing constitutional arguments becomes more difficult. The courtroom does not exist in isolation; it is influenced by the climate outside it.
Q/ Do you see a shift in how courts respond to cases involving political power?
Every ruling establishment, regardless of ideology, seeks influence over the judiciary. That has always been the case. The real question is whether institutional safeguards are strong enough to resist that influence. Over the last 75 years, we have seen that those safeguards are not as robust as they should be. The danger is not only external pressure but also internal institutional weakness.
Q/ Are Centre-state relations drifting away from constitutional balance?
The danger is certainly present. Constitution already has a centralising tendency. But proposals like One Nation, One Election could further erode the federal structure.
More immediately, the issue lies in financial control. States have repeatedly approached courts over delays in compensation, funds and allocations. This reflects a deeper imbalance: the purse strings are firmly in the hands of the Centre. That is unacceptable in a federal system. Greater financial devolution is essential if states are to function with genuine autonomy.
Q/ How independent is the judiciary in practice?
That is difficult to answer definitively, largely because of a lack of transparency. There is a structural problem in how judges are appointed. While the collegium system is meant to ensure independence, its functioning is opaque. We do not know how decisions are made. At the same time, I am not suggesting that appointment powers should return to the executive. The issue is transparency and accountability within the existing system.
Q/ Gender disparity in the higher judiciary remains stark. Why does this persist?
Because there is no real commitment to gender justice. You don’t need a constitutional amendment or a legislation to ensure representation. There is no reason why 50 per cent of Supreme Court judges cannot be women. And, yet, it doesn’t happen. This is not about a lack of talent. We already have women serving as chief justices of high courts. The problem lies at the level of decision-making, there is resistance at the top.
Q/ It is often argued that women do not sustain long careers in litigation. How do you respond to that?
That is a false narrative. Women have reached the highest levels through hard work and competence. To suggest otherwise is simply incorrect. The issue is not supply, it is exclusion. Structural barriers prevent women from advancing, even when they are fully capable.
Q/ Do young lawyers today share the same commitment to constitutional values as your generation?
Yes, they do. Their challenges may be different, but the Constitution remains the framework within which those challenges must be addressed. There is no lack of commitment among younger lawyers.
Q/ Among the many cases you have argued, which remain closest to your heart?
Cases involving women. But, more broadly, every case is like a child to me. Each one is nurtured, prepared, and carried with care before it is presented in court. That is the approach I believe lawyers must adopt.
