By Jhuma Sen
The Feminist Judgment Project India imagines the possibilities of collaborative writing of alternate judgments for several Indian cases across a broad range of legal issues having a significant bearing on women. At the heart of the project are a set of basic questions—can one formulate a distinctively feminist judicial practice? If so, what are the limitations to that approach? In what manner does this approach differ from the common law approach the court takes? Neither the practice of academic rewriting of judgment is new, nor is specifically the practice of feminist rewriting of judgments. The Feminist Judgment Project India borrows from the sister projects in Canada, UK, Ireland, Australia, New Zealand and USA where feminist academics, lawyers, activists have written alternate versions of judgments originally authored by judges.
In all these projects, the central attempt has been to rewrite court judgments that could have been written better or written differently by using a feminist lens. In 2008, several Canadian feminist scholars, activists and lawyers set up the Women’s Court of Canada, a collaborative project to rewrite Canadian Supreme Court decisions on Section 15, the equality clause in Canadian Charter of Rights and Freedom. The goal of this ‘shadow judgment’ project was to see what substantive equality could look like in judicial expression. The Canadian experiment was repeated in UK Australia. Fifty academics, legal practitioners and activists rewrote twenty-three significant cases in English law. Similarly, thirty-one feminist legal academics rewrote legal decisions in Australia from a feminist perspective. There have been similar shadow judgement writing projects by feminist law professors in USA and New Zealand. In Ireland and Northern Ireland, the methodology has considered the specific Irish and Northern Irish challenges and aspirations and consequently themes of collective identity have interacted and intersected with the theme of women’s experience with law.
The India project too will serve as a shadow judgment writing project by bridging the distance between feminist theory and practice where we will reimagine the role of the judge to adjudicate differently by maintaining fidelity to the same constitutional and legal rules that bind her. For example, what are the ways in which the Supreme Court of India could have reasoned in Tukaram v State of Maharashtra (prosecutrix’ credibility in rape trial) or Githa Hariharan v Reserve Bank of India (guardianship rights of a Hindu mother during the lifetime of the father) to advance a jurisprudence of gender justice? Could one imagine how a rewritten judgment in State of Bombay v Narasu Appa Mali (holding that personal law was immune from constitutional scrutiny) would look like if women were central to its reasoning? Indeed, could we reimagine and rewrite judgments that uphold women’s interest; the so-called “good” judgments, like Vishaka v State of Rajasthan (laying down guidelines to address sexual harassment at workplace) or Shayara Bano v Union of India (invalidating instant triple talaq)? Or what would those judgments that interpret facially neutral provisions look like when rewritten from a feminist position? What are the feminist critiques that would inform and accompany such judgment rewriting process? These are just a few ideas to probe the radical possibilities of this project.
We imagine that the ‘alternative judgments’ or ‘missing judgments’ or ‘dissenting opinions’ will reveal the extent to which cases could (and should) have been decided while remaining faithful to legal and constitutional limitations. We invite contributions from interested collaborators in two categories:
Judgments: Those who are interested to (re)write judgments (6000-8000 words), please submit a proposal of 300-500 words, indicating the name of the case you wish to write on, and briefly explaining how the case would benefit from a feminist analysis.
Commentaries: Those who are interested to write commentaries (3000-4000 words), please indicate in a 300-500 worded proposal, the case for which you want to write the commentary explaining why you think such case merits a feminist analysis.
The following is an indicative list of judgments that could benefit from a feminist rewriting:
Dadaji Bhikaji vs Rukhmabai (1885) ILR 9 Bom 529
Re: Regina Guha vs Unknown 35 Ind Cas 925
Tukaram v State of Maharashtra, 1979 SCR (1) 810
Mohd. Ahmed Khan v Shah Bano Begum, 1985 SCR (3) 844
Vishaka v State of Rajasthan, (1997) 6 SCC 241
SR Batra v Taruna Batra, AIR 2007 SC 1118
Raj Bala v State of Haryana, (2016) 1 SCC 463
Githa Hariharan v Reserve Bank of India, (1999) 2 SCC 228
State of Bombay v Narasu Appa Mali, AIR 1952 Bom 84
Sowmithri Vishnu v Union of India, 1985 AIR 1618
Sharad Birdhi Chand Sarda v State of Maharashtra, 1984 AIR 1622
Suchita Srivastava v Chandigarh Administration, (2009) 9 SCC 1
Air India v Nargesh Meerza, 1981 AIR 1829
Suresh Kumar Koushal v Naz Foundation, (2014) 1 SCC 1
CBI v. Sakru Mahagu Binjewar MANU/MH/0893/2010
Anuj Garg vs Hotel Association of India (AIR 2008 SC 663)
Preeti Gupta and Anr. v. State of Jharkhand & Anr. (2010) 7 SCC. 667
Rajesh Sharma vs State of Uttar Pradesh 2017 SCC OnLine SC 821
Phul Singh vs State Of Haryana 1980 SCR (1) 589
Bharwad Bhogibhai Hirjibhai v. State of Gujarat , AIR 1983 SC 753
Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511
Indra Sarma v. V.K.V.Sarma. 2013(14)SCALE448
D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469
Harvinder Kaur vs Harmander Singh Choudhry AIR 1984 Delhi 66
Raja v State of Karnataka (Cri. Appeal No. 1767 of 2011)
Sahyog Mahila Mandal and Anr. Versus State of Gujarat and Ors. (2004) 2 GLR 1764
Narendra v. K. Meena, 2016 SCC OnLine SC 1114
Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454
Asokan.K.M vs State of Kerala WP(Crl.).No. 25 of 2016
Shayara Bano v Union of India WP (C) No. 118/2016
The judgments may be written by a single individual or jointly by two or more authors in the collaborative collegial practice of judgment-writing. The cases can be from any level—including trial court, tribunals, High Court, Supreme Court etc. Potential contributors may find a sample rewritten judgment here — https://www.academia.edu/29303490/Righting_Sarla_Mudgal_v_Union_of_India_and_Others
The Feminist Judgment Project India will lead to an edited collection of judgments along with commentaries, published by the end of 2019.
Those who are interested in contributing and becoming part of the project should send their proposals to Jhuma Sen at firstname.lastname@example.org by 5th November 2017. Contributors must commit to attending two workshops in 2018, details of which shall be notified later upon acceptance of the proposals. For further details, please visit the Feminist Judgment Project, India website.
The author is an Assistant Professor at O.P.Jindal Global University.