Jhuma Sen, Rachna Chaudhary and Aparna Chandra anchor the Indian Feminist Judgments project [IFJP], a collaboration between feminist legal academics, litigators and judges, practitioners, activists from law and other disciplines, who are using a feminist lens to re-write alternative opinions to existing judgements. Indian Law Review, Volume 5 (Issue 3) presents a set of six re-written judgements and accompanying commentaries that were prepared as part of the IFJP.
This interview with Jhuma Sen and Rachna Chaudhary was conducted over a Zoom call and edited for length and clarity. Jhuma Sen is a lawyer, academic and policy consultant whose research and practice interests include human rights, gender justice, and anti-discrimination law. Dr. Rachna Chaudhury teaches at the School of Human Studies, Ambedkar University, Delhi. Her doctoral work is in the area of feminist jurisprudence and criminology.
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Gayatri Gupta [GG]: Can you give a small introduction as to what the Indian feminist judgment project is all about?
Jhuma Sen [JS]: The idea about the IFJP is not really novel. It certainly marks a departure from existing modes of feminist critique of law, legal intervention and judgments. But as a form of scholarly activism, it borrows from other similar projects across the globe. The Canadian Project, called the Women’s Court of Canada, was a first of its kind and it caught feminist imagination. There was a project in the United Kingdom with English and Welsh judgments, followed by the Scottish project, Northern Ireland Project, and multiple American projects. The common idea behind these projects is to take a critical look at judgments. There is no requirement for the judgment to fall under traditional areas of law which demand or require feminist interventions such as matrimonial disputes, criminal law, sexual violence etc. The Indian Feminist Judgment Project borrows from these broad methodological tropes of these projects and takes a very careful and close look at these existing judgments and attempts to rewrite these judgments. Before the rewriting project is actually undertaken, workshops are conducted for locating the particular judgment in its social, cultural, political and legal context and then trying to understand what went wrong in the original judgment and how that judgment can be rewritten differently.
GG: How did the idea or motivation to begin the project of feminist rewriting in India came up? Were there specific conversations going on in the society or in the courts which prompted the project coordinators to start workshopping this idea?
Rachna Chaudhary [RC]: I can talk about it at two levels. One is my own interest in the area of law despite being from a gender studies background. I am trained as a political scientist and my PHD is on female criminality around Delhi high court judgments. Since I had also taught at a law school for seven years, continuously I was using judgments as part of my research. That was my personal interest. I was also familiar with other judgment projects that were happening abroad at that point of time. When I came across Jhuma’s Call for Papers for IFJP, I responded with a proposal to rewrite Charu Khurana v. Union of India and also approached her in terms of getting more actively involved in the IFJP as I found it to be a novel opportunity of combining feminist theory and praxis.
JS: I am sure that many feminist historians, sociologists, lawyers have been thinking about such a project in one form or another. I was very excited when I stumbled upon the English Project book, co-edited by Rosemary Hunter and Erica Rackley since it involved not only critiquing a judgment but practically demonstrating how the judgment could be written differently. It also served a pedagogic purpose since it can be used in classroom teaching, judicial training and other practical uses. Certainly, in a litigious country like India where we do have a plethora of judgments which we always wish would be written differently or written better, the rewriting project needed to happen. We released the Call for Papers and got a tremendous response and there was a lot of interest shown in a project like this from different disciplines, including lawyers, judges and others who didn’t work in traditional areas of law.
GG: What makes a judgment a ‘feminist judgment’? What were some of the key considerations that went into envisioning the crux of this project?
RC: We were looking for feminist reasoning based on consciousness that is alert to the problematic workings of gender and also to the predicament of marginal groups and individuals. The other key consideration was this common thread that ran along the conceptualisation of the project was a firm belief in ideas of social transformation and social justice. The possibility and[potential to use legal interpretation creatively to arrive at a more progressive understanding of facts and statutory provisions was also a factor. Finally, we made it a point to be as inclusive as we could to multiple disciplinary perspectives and were thus receptive to using critical insights from social sciences and humanities as well.
JS: Some of the decisions we made at the very start of the project were useful in the long run. In our Call for Papers, we specified that we are not dictating what would be an ideal or authentic feminist method because feminist methods are always in plural and there can be multiple routes to reach the same outcome. The other thing we were conscious about was to not identify a set of judgments — we did not even specify if they should be apex court judgments or high court judgments. The participants were free to choose any judgment which they believed should be rewritten and deserves a feminist critique. This was useful since we got a diverse bunch of judgments. This decision was also feminist in some way since we did not want to dictate what a canon is since we wanted to unpack the idea of a canon/ the landmark judgments which mark a watershed moment.
GG: When the judgments were being selected and reviewed, could any pattern be observed in terms of diversity of the judges and how it impacts the content of the judgment being given?
RC: We did not focus on the judges as such but it remains a key concern. We have been talking about the absence of diversity throughout the judicial structure. However, like Prof. Sen was clarifying, for IFJP, this inclusivity did not stop at demanding for more gender diversity. Even though numbers do count, we were alert to the continuum in which female judges are automatically perceived as equal to feminist judges. So gender then was a key consideration, but in terms of diversity, we wanted a more diverse judicial setup. So it wasn’t just about the masculine values that were inherently a part of the legal system, but the pervasiveness of multiple identity accesses, heteronormativity, class, caste. Being alert to the problematic workings of these various identity access also led to a review of the kind of judgements that we had received, and then taking a call. So other than the simple approach of allowing people to come up and choose their own judgments, decide to rewrite them on the basis of their lived experience, the way a particular area of interest spoke to them, or the fact that the professional expertise was in that area, we also consciously tried to approach some people keeping in mind that certain key thematics concerns were very crucial for a project of this kind, but we still did not get proposals of that sort. So we reached out to scholars, practitioners, and other stakeholders to propose rewriting of those judgments.
Could you share one or two specific judgments that you definitely want rewriting project to happen for which might have been or might not have been included in the final stage?
RC: I remember particularly a judgment based on the Armed Forces Special Protection Act and its workings in the Northeast. So it hasn’t worked out in entirety, we are still looking for a judgment writer. Though, the commentary is more or less ready.
JS: I was also thinking of the AFSPA judgment. We also wanted it for the Nandini Sundar judgment. Although, it is seen as a good judgment, but we wanted to unpack and do a feminist critique of the project of modern law. That is one judgment that we identified that deserved the feminist rewriting. We wanted to move away from the idea that judgements that deserve a feminist rewriting or a feminist critique are only on areas concerning sexual violence, trafficking, matrimonial laws etc. This was a very conscious decision.
We wanted to take a hard look at the state, do a feminist critique of the state, through some select judgements. We identified some criminal law judgments like the Shabnam judgment. We wanted to look at some judgments on the anti terror laws and do a feminist critique of state through these judgments. So, like Rachna said, we were quite alert to the possibilities of making it a diverse project in every manner possible. As far as a thematic focus goes, we kept pushing the boundary.
GG: Coming to the methodology, one of the things mentioned in the ILR introduction was that the rewritten judgments were kept limited to the extent of the law and expectations of the time when the original judgements were written. And I think this has been a practice, at least in some of the other foreign jurisdictions also where these rewriting projects have happened. So what were some of the advantages and disadvantages which were faced when this approach was followed?
JS: I’ll speak about the disadvantages first. The disadvantages were manifold. Example, Tukaram v. State which is a cannon. One of the things that happened during that rewriting process was that we wanted to get hold of the Bombay high court judgement, written by the Nagpur bench of the Bombay high court. It was a good judgment, but we could not find the judgement as it was not reported. We actually tried for a little more than a year, trying to dig up that judgment. And finally found it after a lot of hassle. We got it through an advocate practicing in Nagpur, through a former student of mine who was also an active part of the project. Speaking of disadvantages, in India, there is a problem of archiving. Feminist archiving ought to be a form of feminist judicial practice as well. But, archiving in the judicial spaces is quite miserable.
Not all judgements are reported, if you want to look at trial court judgements, the E-Court project is very recent, digitisation of records is far and few. So, we need to talk more about the practice of archiving. Now, thanks to Live Law, you get everything, from written submissions and everything. But what is argued before the court sitting as a judge in the 1960s or the 1950s or 1970s, you did not have that privilege. If you’re trying to think like a judge who was rewriting a judgment from the 1970s, you don’t know what the submissions are, and you are just limited to the text of the original judgment, you really don’t know what was being submitted. So this became a problem. So in one way, we had to be creative in some respect, and we took ideas from some of the other projects. So what we did was we thought of using the judicial practice of appointing an amicus curiae and placing on record some feminist arguments that could have come before the court.
RC: So adding to the list of disadvantages, another one was the fact that we already were armed with a certain kind of feminist knowledge. So how do we undo that, unlearn and pretend that things could have been. Even in that temporal space, we could have imagined things more differently, more creatively within the constraints of the then existing statutory provisions. So that was also quite challenging.
Talking about advantages, one fact is that other projects also followed this as a practice. So in our case, during the writing workshops that were held with practitioners, sitting and retired judges and other stakeholders who became closely involved with the project, we continuously reminded ourselves that since we were looking at this rewriting exercise, not as rhetoric or simply critique or an academic exercise. We were also trying to expand the legal canon, the idea of legal practice, legal interpretation. So we were quite enthusiastic in terms of its actual utility. So in that sense, we were continuously reminded to stay as close to the format as possible, if we were to be taken seriously, if these rewritten judgments were to be used as a teaching resource in judicial academies, in law schools. In that sense, adhering to that format has resulted in the image of the rewriting exercise which has practical utility also.
GG: What do you think are the possibilities and the limitations of projects such as this for feminist traditional practice in India, considering that, with who the judges on the bench, the decision might change or the reasoning might be different?
JS: I take judicial training very seriously. I think that our judges need to be trained, I’m not saying that they’re not trained, they are trained, but usually the focus of these training is confined to the lower judiciary. I think the higher judiciary needs to be trained quite a bit. That said, one of the ways in which this project might find some use in the foreseeable future is the use of project of this nature in the classroom because today’s law students are tomorrow’s lawyers and judges. So, if you can practically demonstrate that there was an alternative or better way of writing a judgment, given the same kind of materials that were present before the presiding judge, I think it makes some change in perception. It is a very handy exercise as well because you are actually demonstrating. You’re not limiting yourself to critique because there’s always this critique of critique that what is the solution and students ask how could a judge be a feminist judge, whether a judge should at all be a feminist judge, what does feminist judicial practice mean, what about ideological bias and so on and so forth. But you can actually demonstrate that there is always an alternate way in rewriting something, and that is beneficial in the long run.
RC: Judith Resnik would label this as the resiliency of legal culture to critical attack. So what we are doing through this project is not just attacking critically, in a limited sense, or living up to the stereotype of feminists ranting about law and its workings. So in a calculated way, just like it is done conventionally, we are also demonstrating how legal practice can be changed, both the structure of legal reasoning, as well as the outcome. Like Jhuma pointed out, the more popular this kind of exercise becomes in law schools as part of the judicial canon, and also in judicial academies, the better. Therein lies our hope. We have been quite conscious of that kind of responsibility. So we can’t foresee the outcome, but that doesn’t foreclose the possibility of trying.
GG: How is the Indian feminist judgment project different from the projects that happened in other jurisdictions? How do the different socio-legal contexts affect the various Feminist Judgments projects? What are the specific challenges you think the IFJP face(d) in India that might not be there in other jurisdictions?
RC: Diversity is one area. It has been difficult to find people to engage in ‘non typical feminist’ areas of law because fewer people are engaged in this area and still fewer are ready for that kind of critical engagement of the state, which aligns with the larger context that we are a part of at present. Funding and institutional support is another big constraint also because all along, this has been done at an individual level effort and that has resulted in many setbacks as far as the fruitful culmination of the project is concerned.
JS: It is not just diversity, but also the peculiarities of the ways in which the Indian judiciary works. This archival bit has been a thorn for a while now, because you just don’t know what kind of submissions were made. And also the way in which Indian judgments are written and authored. Because if you have a 700 page judgment, you can’t expect your contributor to write a 700 page judgment. One doesn’t need to write a hundred page judgment to begin with. So, those peculiarities, particular ways in which judges refer to colleague judges, as brother judges, now also replaced with sister judges, but there’s always something or the other, the language, how it is notoriously verbal, notoriously long, not written very well. I’m not saying all are written poorly, but the usual sort of complaint against Indian judgments is that they’re very long, difficult and boring to read. I mean walk into any law school, students will not read judgment. But you learn the judgement, only by reading a judgement. So, when you find a good judgment, which has been authored reasonably well, you get very excited, or which has been authored in a very creative manner, it catches your attention. So that has been a challenge.
There have been technical challenges as well, like how do you write a judgment when you do not have any information about the relevant data, the relevant information, because that’s missing because the bench did not deem it fit to raise those issues. So those kinds of challenges are there.
GG: What are some of the future plans for the project?
JS: Publish, send out the rewritten judgments to the big, bad world. One of the reasons why it has taken so long for us is because we wanted to be a very diverse project. We wanted to have as many kinds of judgments, as many kinds of disciplines intervening in the rewriting process. So it became a slightly longer process than it usually is. We ticked one item of the box, that is the Indian Law Review issue is out now. We are in conversation with Cambridge university press for a two volume set, hopefully if all goes well.
RC: And we also plan to use that website and keep on building it and use it as some sort of an informal platform for a regular sort of feminist critique of existing judgements, because I don’t think bad judgments will stop coming. So, we’ll be in business.
GG: Is there a possibility of collaborating with artists to produce pieces in response to particular judgments or the enterprise of feminist judging as a whole, like the Scottish Feminist Judgment Project did?
JS: In a limited sense, we ventured out into that domain, but not directly with artists. We actually had exhibitions and the idea was, at some point of time, to publish the images. We had two different strains of the exhibition during the second workshop. We wanted to chart out a history of Indian feminists engagements with law. We started from much before the constituent assembly debate, age of consent debate to the constituent assembly members, we looked at women advocates from all walks of life, advocates who have been designated as senior advocates, who haven’t been designated as senior advocates, we’ve looked at judges and their lives, their struggles, how they have engaged with the law and legal processes. So this was one part of it.
We also looked at judgements, we actually had a display of the Mathura paper clips surrounding the archival material on the coverage of the Karam v. State. Not just the judgment, but also the response, the reaction it generated. This was one part of it. The other part of it was that Zubaan has generously lent us posters from the poster archive. And we had a demonstration of those as well. So in a very limited way, we did this. But we haven’t really thought about it so far. Our main concern right now is to finish and push the publications, after that maybe we’ll think of collaborations.