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Another story of the Open Letter: an inheritance of relationship-making

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In 1979, four law professors wrote the “Open Letter” to the Chief Justice of India (OL). It was written as a way of registering public protest against a decision of the Supreme Court pertaining to the rape of a young tribal girl, Mathura, in police custody. Within contemporary Indian feminist jurisprudential accounts, this text has attained iconic status. The OL has been hailed for mobilising a nationwide women’s movement around the issue of rape and also for initiating rape law reform. In this paper, I move away from the iconicity attached to the OL in the annals of feminist jurisprudence, without disavowing its importance. By locating my reading in a backdrop of our current climate that is saturated with animosities, I attempt to tell a different story about it. I look at how Baxi’s scholarly practice of co-authoring the OL inhabited a conduct of relations with his co-authors, a judge, the tribal girl, Mathura, and his academic discipline of law in a post-Emergency India. In doing so, I weave a story about the OL as an everyday practice of reciprocal relationship-making, in its own time and place. My account of the OL attends to how, by creating reciprocal relations, we might be able to re-organise our worlds into a place that we desire to inhabit.

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  1. Amartya Sen, Foreword, in Selected Letters of Rabindranath Tagore (Krishna Dutta & Andrew Robinson eds., 2005). at xvii.

  2. Gayatri Chakravorty Spivak, Echo, in The Spivak Reader 190 (Donna Landry & Gerald Maclean eds., 1996).

  3. Baxi, Delhi University; Sarkar, Delhi University; Kelkar, Delhi University; Dhagamwar, University of Pune.

  4. Tukaram v. State of Maharashtra, 1979 AIR 185.

  5. Id.

  6. Id.

  7. Radha Kumar, The History of DoingAn Illustrated Account of Movements for Women's Rights and Feminism in India 1800-1990 (1997); Nandita Haskar, Human Rights Lawyering: A Feminist Perspective, in Writing the Women’s Movement: A Reader 131 (Maya Khullar ed., 2005); Mary E. John, Women’s Studies, in India: A Reader (Mary E. John ed., 2008).

  8. Flavia Agnes, Protecting Women Against Violence, 27 econ. & pol. wkly’. 19 (1992); Brenda Cossman & Ratna Kapur, Subversive Sites: Feminist Engagement with Law in India (1996).

  9. Email from Upendra Baxi received on August 22, 2018 (on file with the author); Wendy Brown, The Man in the State, 18 Fem. Studies 1, 7-34 (1992).

  10. Upendra Baxi noted this in his conversation with Janaki Nair. Video recording available as part of the P.C. Joshi Archives on Contemporary History, Jawaharlal Nehru University. In Pratiksha Baxi and Viplav Baxi’s piece in this special issue, they have described this practice as “a tactic of speaking against power”.

  11. For varied accounts of the many ways in which it was inherited by feminists, see Kumar, supra note 8 at 127-138; Haksar, supra note 4; Pratiksha Baxi, Public Secrets of Law: Rape Trials in India 17 (2014). Within Indian feminist academic writings, the OL has come to hold a significant place for its role in the development of an Indian feminism around the question of rape law reform. Feminist academic Radha Kumar, in her historical account of the Indian women’s movement spanning a hundred years through colonial and post-colonial times, described the OL as a facilitator for the movement. Feminist sociologist, Pratiksha Baxi, in her account of rape trials in India saw the OL as a feminist intervention that “questioned the judicial interpretation of consent”. For feminist human rights lawyer, Nandita Haksar, too, the “main focus of the Open Letter was the interpretation of “consent” in the law of rape”. But she also saw the OL as setting the stage for feminist human rights lawyering, and the evolution of a jurisprudence, that was particularly relevant for people’s rights in India.

  12. Pratiksha Baxi and Viplav Baxi, in their contribution to this issue, provide a similar account of Baxi’s practices of kinship and relatedness.

  13. For an account of a conscious practice of intellectual inheritance and reading, see Ann Genovese, Inheriting and Inhabiting the Pleasures and Duties of Our Own Existence: The Second Sex and Feminist Jurisprudence, 38 Aus. Fem. L. J. 41 (2013); Shaunnagh Dorsett & Shaun McVeigh, The Persona of the Jurist in Salmond's Jurisprudence: On the Exposition of ‘What Law Is…’, 38 Victoria U. Wellington L. R. 771 (2007); (1902); Margaret Davies, Ethics and Methodology in Legal Theory: A (Personal) Research Anti-Manifesto, 6 Law Text Culture 7, 9 (2002).

  14. See Nandini Deo, #MeToo sparks Debate on Gender and Caste in Indian Feminism, The Fletcher Forum of World Affairs,; Srila Roy, #MeToo is a Crucial Moment to Revisit the History of Indian Feminism, 52(42) econ. & pol. wkly’. (Oct. 22, 2018),

  15. Nivedita Menon, Statement by feminists on Facebook Campaign to “Name and Shame”, Kafila (Oct. 24, 2017),

  16. See Deepanjana Pal, Why Raya Sarkar’s List is not ‘Vigilantism’, Newslaundry (Oct. 27, 2017), In a recent interview, Raya Sarkar has stated that naming and shaming was an unintended consequence of the List and welcomed the criticisms that were put forth against it. See Vijay Prashad, ‘Movement Missing Voices of Dalit, Adivasi women’, Frontline (Oct. 24, 2018),

  17. American feminist legal scholar Janet Halley has argued that splits exist in the relations between the intent of theory and the interests that it represents. Arguing in favour of breaking up with feminisms’ m/f binarism, she has noted that the prudence and decision-making role of a theorist is acted out at a place of a split, or a point at which the larger intent of a theoretical project and the interests they seek to represent become incommensurable. For Halley, it is often these splits which mark the emergence of a theoretical position within discourse. Janet Halley, Split Decisions: How and Why to Take a Break from Feminism 4 (2008).

  18. By this I am not referring to those who wrote the statement on Kafila or those who published the list. I am referring to a wide range of actors who joined the conversations about the statement and the List on social media and elsewhere.

  19. For the sake of maintaining anonymity, I am not mentioning the name of the conference or the scholar.

  20. See generally, Denise Réaume, What's Distinctive about Feminist Analysis of Law? A Conceptual Analysis of Women's Exclusion from Law, 2 Legal Theory 265, 265–99 (1996); Rosemary Hunter, Law’s (Masculine) Violence: Reshaping Jurisprudence, 17 Law & Critique 27 (2006).

  21. Although I am discussing this point in terms of male/female experience, I understand gender to be a spectrum and not a binary. See Janet Halley, Queer Theory by Men, Duke J. Gender, Law & Policy 11:7 (2004).

  22. See Upendra Baxi, The Crisis of the Indian Legal System xiii (1982). Baxi himself says something similar in the acknowledgement section. He writes:

    I would have ended acknowledgements with appreciation of the help by my wife Prema, and children (Pratiksha and Viplav). But Anne Summers has convinced me now that such appreciation is merely a manifestation of a “sexist culture”. I conclude by adopting her statement:

    The traditional two-line acknowledgement: “To my wife, without whom etc…” is a nauseatingly jejune recompense which disguises what is often the absolute truth […] The wives and children of writers contribute more than is ever acknowledged to the getting out of a book.

  23. Gayatri Chakravorty Spivak, Can The Subaltern Speak?: Reflections on the History of an Idea (Rosalind C. Morris ed., 2008).

  24. See Gayatri Chakravorty Spivak, Can the Subaltern Speak?, in Marxism and the Interpretation of Culture 271-313 (Cary Nelson & Lawrence Grossberg eds., 1988); Gayatri Chakravorty Spivak, The Post-colonial Critic: Interviews, Strategies, Dialogues 108 (Sarah Harasym ed., 1990); Gayatri Chakravorty Spivak, The Spivak Reader: Selected Works of Gayatri Chakravorty Spivak 6 (Donna Landry & Gerald Maclean eds., 1996). Thinking with German intellectual traditions, she wrote about the two kinds of representation - Vertretung and Darstellung – through which the significance and formations of scholar-subject relations may be understood: “representation as “speaking for,” as in politics, and representation as “representation,” as in art or philosophy.” In The Post-Colonial Critic: Interviews, Strategies, Dialogues, Spivak elaborates: “reading in your shoes, wearing your shoes, that’s Vertretung. Representation in that sense: political representation. Darstellung—Dar, ‘there’, same cognate. Stellen, is “to place”, so “placing there”. Representing: “proxy” and “portrait” […] Now, the thing to remember is that in the act of representing politically, you actually represent yourself and your constituency in the portrait sense, as well.” Therefore, representation through knowledge production, according to Spivak, “entails both a standing-in-the-other’s-shoes and an imaginative and aesthetic re-presentation, a staging in the theatrical sense.” So, through the production of knowledge about the Other, one is not only representing the Other (who is different from oneself), but also the self.

  25. Ann Genovese, On Australian Feminist Tradition: Three Notes on Conduct, Inheritance, and the Relations of Historiography and Jurisprudence, 38 J. Aus. Stud. 430-444 (2014); See also, Ann Genovese, Inheriting and Inhabiting the Pleasures and Duties of Our Own Existence: The Second Sex and Feminist Jurisprudence, 38 Aus. Fem. L. J. 41 (2013).

  26. Id.

  27. Genovese, supra note 13, at 42.

  28. Id.

  29. Id. at 2.

  30. See On Australian Feminist Tradition, supra note 25.

  31. See Shaunnagh Dorsett & Shaun McVeigh, supra note 13.

  32. Id.

  33. Id. at 27.

  34. Id. at 16.

  35. Id.

  36. For an account of an inheritance of Baxi’s conduct as a Third World international lawyer, see Adil Hasan Khan’s article in this special issue.

  37. See generally, Coomi Kapoor, The Emergency: A Personal History (2016); Prashant Bhushan, The Case that Shook India: The Verdict that led to the Emergency (2017).

  38. John, supra note 7 at 3.

  39. The other members of the Committee were: Phulrenu Guha, Maniben Kara, Savitri Shyam, Neera Dogra, Vikram Mahajan, Leela Dube, Sakina A. Hasan, Urmila Haksar, and Vina Mazumdar. See Towards Equality: Report of the Committee on the Status of Women in India (Kumud Sharma & C.P. Sujaya eds., 2011).

  40. John, supra note 7 at 3.

  41. Id. at 5.

  42. See generally, Upendra Baxi, Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India, 4 Third World Legal Stud. 107 (1985).

  43. Upendra Baxi, Violence Against Women in the Labyrinth of the Law, in Inhuman Wrongs and Human Rights: Unconventional Essays 70 (1994).

  44. Id.

  45. OL: “There is not a single word condemning the very act of calling Mathura, and detaining her at the police station in gross violation of the law of the land made by Parliament and so recently reiterated by the Supreme Court. Nor is there a single word in the judgment condemning the use of the police station as a theatre of rape or submission to sexual intercourse. There is no direction to the administration to follow the law. There are no strictures of any kind”. Upendra Baxi, Vasudha Dhagamwar, Raghunath Kelkar & Lotika Sarkar, An Open Letter to the Chief Justice of India, (Sept. 16, 1979) [hereinafter Open Letter],

  46. Id.

  47. Upendra Baxi interviewed by author (January 25, 2017).

  48. See Open Letter, supra note 45.

  49. Towards Equality, Report of the Committee on the Status Of Women In India, Ministry of Education & Social Welfare (1974) [hereinafter Towards Equality].

  50. John, supra note 7 at 5. According to feminist scholar Mary E. John, it is this aspect of the report, as well as the report as a whole, that changed the dominant course of the relationship between women and academic research in India from the mid-70s and led to the setting up of the new field of study called Women’s Studies (WS) in academic institutions: the report led to the realisation that the lives of poor rural women needed to be recognised and transformed, which set in motion a shift in thinking about women and institutional education. From “women as subjects to be educated” it turned to ““women” as new subjects of investigation and study”. Upendra Baxi, Towards the Liberation of Women’s Studies, in Inhuman Wrongs and Human Rights: Unconventional Essays 56 (1994). As the chairperson of the Indian Council for Social Science Research Committee on Women’s Studies, Baxi, worrying about this practice of instituting women as subjects of knowledge production, commented: ‘In so far as current thinking on WS in India suggests a dichotomy between discourse and praxis, there is perhaps no way by which we can prevent WS from becoming yet another oppressive scientific domain’. On this, see Oishik Sircar’s essay in this issue.

  51. See Towards Equality, supra note 49, at 357.

  52. Upendra Baxi interview with Debolina Dutta (Jan. 25, 2017).

  53. In the text of the OL the authors write: “My Lord, your distinguished colleagues and yourself have earned a well-merited place in contemporary Indian history for making preservation of democracy and human rights a principle theme of your judicial and extra-judicial utterances, especially after March, 1977. But a case like this with its cold-blooded legalism snuffs out all aspirations for the protection of human rights of millions of Mathura’s in the Indian countryside. Why so?” See Open Letter, supra note 45.

  54. See Upendra Baxi interview, supra note 52.

  55. Upendra Baxi in conversation with Janaki Nair, supra note 10.

  56. Article 15 of the Indian Constitution lays down gender, among others, as a ground for non-discrimination. Article 14 guarantees the Right to Equality before the Law and Equal Protection of Laws. In the OL, the authors write: “The Court, under your leadership, has taken great strides for civil liberties in cases involving affluent urban women (e.g. Mrs. Maneka Gandhi and Mrs. Nandini Satpathy). Must illiterate, labouring, politically mute Mathuras of India be continually condemned to their pre-constitutional Indian fate?” See Open Letter, supra note 45.

  57. Upendra Baxi, Unlearning the Law with Lotika Sarkar, The First Lotika Sarkar Memorial Lecture: Campus Law Centre, University of Delhi (Feb. 22, 2014),

  58. Upendra Baxi in conversation with Janaki Nair, supra note 10.

  59. See Open Letter, supra note 45.

  60. OL: “Does [the Supreme Court] believe with the Sessions Judge that Mathura was “habituated to sexual intercourse” to such an extent? And therefore further think that the semen marks on Mathura’s clothing could have come from further sexual activities between the police incident and the next morning when she was medically examined? What about semen marks on Ganpat’s trousers? Why these double standards? Ganpat’s sexual habits give him the benefit of doubt of having “raped” Mathura; her sexual habits make the Court disbelieve the story of the rape altogether!” See Open Letter, supra note 45.

  61. Nandini Satpathy v. Dani (P.L.) And Anr, 1978 AIR 1025.

  62. Maneka Gandhi v. Union of India, 1978 AIR 597.

  63. OL: “The Supreme Court, speaking through Justice Krishna Iyer, condemned the practice of calling women to police stations in gross violation of Section 160(1) of the Criminal Procedure Code. Under that provision, a woman shall not be required to attend the police investigation at any other place than her place of residence. The Court stated in Nandini that it “is quite probable that the very act of directing a woman to come to the police station in violation of Section 160(1) CrPC may make for tension and negate “voluntariness”.” This observation was made in the context of the right against self-incrimination; is it any the less relevant to situations of “rape” or, as the Court wishes to put it, “intercourse” in a police station”. See Open Letter, supra note 45.

  64. OL: “Mathura, with all her predicaments, has been fortunate that her problem reached the High Court and your Court. But there are millions of Mathura’s in whose situations even the first information reports are not filed, medical investigations are not made in time, who have no access to legal services at any level and who rarely have the privilege of vocal community support for their plight”. See Open Letter, supra note 45.

  65. OL: “We also find it surprising that the Supreme Court should have only focused on the third component of Section 375 of the Indian Penal Code, which applies when rape is committed with the woman’s consent, when “her consent has been obtained by putting her in fear of death or hurt”. But the second component of Section 375 is when rape occurs without her consent”. See Open Letter, supra note 45.

  66. OL: “The fact remains that she was asked to remain in the police station even after her statement was recorded and her friends and relations were asked to leave. Why? The fact remains that Tukaram did nothing whatsoever to rescue the girl from Ganpat. Why? The Court says in its narration of facts, presumably based on the trial Court records, that Tukaram was intoxicated. But this is not considered material either. Why? Why were the lights put off and doors shut?” See Open Letter, supra note 45.

  67. OL: “The Court gives no consideration whatsoever to the socio-economic status, the lack of knowledge of legal rights, the age of the victim, lack of access to legal services, and the fear complex which haunts the poor and the exploited in Indian police stations”. See Open Letter, supra note 45.

  68. See Open Letter, supra note 45.

  69. Id.

  70. See Baxi, supra note 57.

  71. Id.

  72. Upendra Baxi in conversation with Janaki Nair, supra note 10.

  73. Baxi, supra note 43.

  74. See Open Letter, supra note 45.

  75. Baxi, supra note 43 at 71.

  76. Upendra Baxi in conversation with Janaki Nair, supra note 10.

  77. Id.

  78. “The Bar was justified to a point. They were objecting to the public criticism of the Court; so far, such criticism was their turf! The Bar in India has always claimed a natural right to judge [the] judges; a guild right which constitutes their privileged space. Judicial process was not to be understood by all and sundry and the responsible mode of criticism was known only to those initiated by the black coat and the gown (and affluence)”. Baxi, supra note 43 at 72 [emphasis in original].

  79. OL: “We can only appeal, in conclusion, to have the case reheard, as an unusual situation, by a larger bench, and if necessary by even the Full Court”. See Open Letter, supra note 45.

  80. Upendra Baxi interview, supra note 52.

  81. Baxi, supra note 43 at 73.

  82. Id.

  83. OL: “My Lord, your distinguished colleagues and yourself have earned a well-merited place in contemporary Indian history for making preservation of democracy and human rights a principal theme of your judicial and extra-judicial utterances, especially after March, 1977. But a case like this with its cold-blooded legalism snuffs out all aspirations for the protection of human rights of millions of Mathuras in the Indian countryside. Why so?” See Open Letter, supra note 45.

  84. Baxi, supra note 43 at 71.

  85. Upendra Baxi, Courage, Craft, and Contention: The Indian Supreme Court in the Eighties 4 (1st ed., 1985).

  86. In 1975, the Indian Council of Social Science Research (ICSSR) entrusted Baxi with the task of writing a paper with suggestions for the development of programmatic institutional research in the area of law and social change. Upendra Baxi, Socio-Legal research in India: A Programschrift, 24 J. of Indian L. Inst. 416 (1982).

  87. Id. at 18. Baxi writes: “In a way, we also emphasize study of movements of social change through the law by recourse to “direct action” or “civil disobedience”.”

  88. Id.

  89. Upendra Baxi, Teaching as Provocation, in On Being a Teacher 154 (Amrik Singh ed., 1990). Baxi writes: “[t]o my mind, teaching and learning are acts of social intervention and they are complete when knowledge accumulated the erudite way is enriched by knowledge earned through encounters which interrogate tyranny, injustice and exploitation enacted before our own eyes even as we “teach” and “learn”.” [emphasis in original].

  90. Id. [emphasis added].

  91. Id. Baxi writes: “I simply cannot carry conviction about what I say to young minds unless they see that I mean what I say about the rule of law, human rights, human dignity”.

  92. See Baxi, supra note 57.

  93. Baxi, supra note 42 at 108. “While labels [of legal concepts] can be borrowed, history cannot be”.

  94. Baxi, supra note 42. Baxi argued that the SC’s turn to “social action litigation” in the post-Emergency period is a way to finally take the suffering of its people, and its own responsibility to undo it, seriously.

  95. Baxi, in his interview with Janaki Nair, refers to Mohandas Gandhi’s trial in British India during the nationalist struggle. He narrates an incident where Gandhi had told an English judge that he has done his duty by protesting the British Rule of Law, but he also has a moral right to be punished as a result of performing that duty in order to be able to strengthen his belief in legality and justice. Upendra Baxi in conversation with Janaki Nair, supra note 11.

  96. See Open Letter, supra note 45.

  97. Upendra Baxi in conversation with Janaki Nair, supra note 10.

  98. Baxi, supra note 43 at 69; Upendra Baxi interview, supra note 52.

  99. Upendra Baxi interview, supra note 52.

  100. Id.

  101. Id.

  102. Baxi, supra note 43 at 69.

  103. Upendra Baxi, Towards a Liberation of Women’s Studies, in Inhuman Wrongs and Human Rights: Unconventional Essays 63 (1994).

  104. Baxi, supra note 42 at 107. Baxi’s assertion on the need for transforming practices of legal professionals acting strictly within the inherited bounds of traditional legal knowledge may be noted in his essay “Taking Suffering Seriously”. Here, Baxi speaks in favour of what he calls “Social Action Litigation”, because it performs a transformation of the “inherited common-law-like judicial process”, which provides for people’s causes of human suffering being “argued arcanely” merely as issues.

  105. See Baxi, supra note 57.

  106. Baxi, supra note 89 at 153.

  107. Baxi, supra note 43 at 69 [emphasis in original].

  108. Feminist legal scholars have critiqued the Constitutional principle of equality, which, in order to be neutral and objective, advocates for “likes being treated alike” and in the process ends up being discriminatory towards women. See Ratna Kapur & Brenda Cossman, On Women, Equality and the Constitution: Through the Looking Glass of Feminism, in Gender and Politics in India 261 (Nivedita Menon ed., 1999).

  109. See Open Letter, supra note 45.

  110. Upendra Baxi in conversation with Janaki Nair, supra note 10.

  111. Flavia Agnes, Transgressing Boundaries of Gender and Identity, 37 econ. & pol. wkly'. 3695, 3695-3698 (2002).

  112. Id. at 3696.

  113. See Baxi, supra note 57, at 3.“…but perhaps the greatest challenge came from Kishen 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 Kishen never raised the matter with her; she did not expect such discourtesy from a former student, even when she respected his freedom of speech. At any rate, Dada Chitale of the AIR [All India Radio] 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 the newspaper report, Mathura was accepted by her husband and was leading a relatively peaceful life”.

  114. Baxi, supra note 43 at 75.

  115. Id.

  116. Baxi, supra note 103 at 59.

  117. Email correspondence with author (Aug. 25, 2018). In continuation of the quote, Baxi has written: “…Lotika often sided with Raghunath in the drafting the post OL legislative memorandum; Vasudha declined to be part of the memorandum (and wrote why in the Mainstream); our own student Kishen Mahajan wrote a malicious piece concerning the plight of Mathura. There are other stories of hostility from that period…”.


This paper has emerged out of my doctoral research at Melbourne Law School. I would like to extend my sincere thanks to Ann Genovese, Shaun McVeigh, Oishik Sircar, Adil Hasan Khan, Upendra Baxi, Pratiksha Baxi, Dianne Otto, and Joan Nestle for reading iterations of this paper and for the conversations that have shaped my thinking. The very first version of this paper was presented at the Feminist Experiences of Law Workshop at Melbourne Law School in October 2016. I thank Hillary Charlesworth for her comments on my presentation there. Thanks are also due to Janaki Nair for readily providing access to the video recordings of her interview with Upendra Baxi from which I have benefitted immensely. Any failings in this paper are solely my responsibility.

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Dutta, D. Another story of the Open Letter: an inheritance of relationship-making. Jindal Global Law Review 9, 181–201 (2018).

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