Reimagining Constitutional Morality through Feminist Judgments

The Supreme Court’s flirtation with constitutional morality has often been narrated as a victory for progressive courts. Yet a feminist audit reveals how often the doctrine forgets the lived, material work of sustaining constitutional promises.

Centering Care Work within Constitutional Morality

Care work—whether performed by Dalit sanitation workers or trans carers in mutual aid networks—rarely enters the courtroom record. Drawing on Joan Tronto’s ethics of care, a feminist constitutional morality would:

1. Recognize the labour that sustains liberty and dignity claims;
2. Demand redistributive orders beyond declaratory relief; and
3. Embed periodic compliance reviews that keep states accountable.

"A Constitution without relational care is a parchment promise." — Justice (ret.) Leila Seth (imagined)¹

Case Study: Safai Karamchari Andolan

The Delhi High Court’s 2019 order banning manual scavenging cited constitutional fraternity but ignored care burdens. A feminist re-write would have mandated municipal budgets for mechanized cleaning, occupational health clinics, and survivor-led monitoring boards.

Dalit-Feminist Praxis as Constitutional Compass

Dalit feminist scholars remind us that brahminical patriarchy structures both state power and private violence. In constitutional litigation, this means:

• Naming caste in gender judgments instead of defaulting to gender-neutral rhetoric;
• Treating reservation as a gender justice tool, not merely social justice; and
• Reading Article 15(3) as enabling anti-caste feminist remedies.

Beyond Symbolic Relief

Remedies must move from symbolic empathy to budgeted transformation. In the Hathras case, survivors’ families requested a land title, educational scholarships, and travel budgets for trial hearings—asks that rarely make it into final orders.

Trans-Inclusive Constitutional Remedies

While Navtej Johar decriminalized queer love, enforcement remains cis-centered. Feminist constitutional morality would mainstream:

• Trans-led expert committees for implementation reviews;
• Gender-neutral drafting in police circulars; and
• Budgetary earmarking for community housing and health access.

The Limits of Privacy-Only Reasoning

Reliance on privacy (per Puttaswamy) risks siloing queer lives inside the home. Feminist reasoning insists on positive obligations—safe public toilets, hormone access in prisons, and recognition of chosen families.

Toward a Feminist Doctrine of Constitutional Care

Constitutional morality must be tracked through care-based indicators:

A doctrinal shift is possible if litigants and judges co-create monitoring templates, publish compliance dashboards, and pair each right with an enforceable care obligation.

Footnotes

1. From Justice Seth’s lectures on feminist judging (2016). While apocryphal, the quote captures the normative stance advanced here. ↩