Much has been written on the complex relationship between law and feminism. Feminist scholarship has at times, indicated the usefulness of law to improve the quality of life for women or the extent to which law is limited by patriarchy. On the one hand, therefore, feminists have identified law as a site of articulating feminist goals of equality and anti-discrimination; on the other hand, the complex and contradictory nature of law itself has been critiqued by feminists, both globally and in India. At the same time, feminists, aware of the ways in which the centrality of law in our everyday life constructs the hegemony of a legal order, have argued about the necessity to not only challenge the form of law, but also attempted to de-centre law wherever possible. Sometimes, feminists have argued that feminism has conceded ‘too much’ to law to accept law’s terms to challenge law [i].
When feminists have engaged with law, they have almost always questioned the ‘neutrality’ of law’s empire and have attempted to dismantle its universalist assumptions by framing reasonable woman standards, feminist common knowledge and thereby radically sought to alter the truth-seeking purpose of law. This has meant, that when, for example, feminists have looked at law of evidence, they have considered among other things, the effect of the subject on women and men and on their construction as defendants, witnesses, litigants, victims and even judges [ii]. The feminist approach has then scrutinized and evaluated how the body of ‘legal’ knowledge is constructed, or how it is excluded and the gendered implication of both. Similarly, the privileging of certain reasoning processes over others have been questioned by feminist. The feminist critique of the ‘reasonable man’ standard, has led to the ‘reasonable woman’ standard in sexual harassment, rape and domestic violence cases. The inherent limitations of the ‘reasonable woman’ standard (should the action of a black lesbian woman be measured against a standard of a reasonable woman or a black lesbian woman, for example) has again provoked feminists to probe deeper and search for alternate conceptions of reasonableness [iii].
While feminists paid significant attention to critiquing law and advocating law reform, they were less devoted to explore what the ‘doing’ of law should entail. Katherine T. Bartlett writing in 1990 stressed how feminists should not ignore methods while challenging existing structures to ensure that they do not end up in recreating the same structures of power that they are trying to undermine. Bartlett and others have subsequently grounded feminist legal methods on asking the ‘woman question’ (while being conscious of the multiple identities the label ‘woman’ contains), feminist practical reasoning and consciousness raising where ‘positionality’ has been argued to be the best approach to understand what it means to be ‘right’ in law. [iv]
While the theoretics of practice has eased much of the tension between feminist theory and practice and informed feminism and transformed lawyering [v], much less attention has been paid to feminist judging until recently. Feminists have traditionally produced academic critiques of existing judgments. This has changed with the emergence of the Feminist Judgment Project worldwide, as a form of ‘academic activism’. The project premises itself on a set of questions—
What if a group of feminist scholars were to write the "missing" feminist judgment in key cases? Could we put theory into practice, in judgment form? What would these judgments look like? What impact would they have? [vi]
In the Women’s Court of Canada, an association of feminist scholars, lawyers, activists attempted “to work out what a constitutional theory of equality should look like” by drafting alternate judgments to the Canadian Supreme Court decisions to show ‘how it is done’. The Canadian experiment was repeated in UK as the Feminist Judgment Project where fifty academics, legal practitioners and activists rewrote twenty-three significant cases in English law. Similarly, in Australia, thirty-one feminist legal academics rewrote legal decisions 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. Feminists have also tackled the question of rewriting judgments in international law.
In fact, the idea of academic judgment writing is not new. Landmark cases like Brown v Board of Education and Roe v Wade have been rewritten by scholars [vii]. Scholars have also embarked on speculative and fictional judgment writing exercises [viii]. The Feminist Judgment Project has differed here from other such judgment writing enterprises on primarily two grounds, first, the authors here rely on the materials available publicly at the time the original case was decided, and second, the usual form or practice of judgment writing are usually left untampered. While some of the later feminist judgment projects have departed from the norms set by some of the earlier projects affirming, if anything, the plurality of feminist method(s), the central questions underlying the method(s) remain the same for all projects--Who is a feminist judge? What is a feminist approach to judging and what are the constraints of feminist judging in the institutional framework of traditional judging?
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? We also have a broad consensus that in the Indian context, a feminist project cannot limit itself to “woman” as a self-evident, biological category and that it is necessary to make it explicit right from the beginning that the project thought of women in relation to their caste, class, religion, sexuality, dis/ability and so on.
The India project 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 [ix] (prosecutrix’ credibility in rape trial) or Githa Hariharan v Reserve Bank of India [x] (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 [xi] (holding that person law was immune from constitutional scrutiny) would look like if women were central to its reasoning? Indeed, could we reimagine and rewrite the judgments that uphold women’s interest; the so-called “good” judgments, like Vishaka v State of Rajasthan [xii] (laying down guidelines to address sexual harassment at workplace) or Shayara Bano v Union of India [xiii] (invalidating instant triple talaq)? What are the feminist critiques that would inform and accompany such judgment rewriting process? These examples are just a few to probe the radical possibilities of this project. We hope that this project will not only be an exercise in ‘academic activism’ but would also find its way into judicial practices.
[i] Smart, Carol. Feminism and the Power of Law. Routledge, 2002.
[ii] Childs, Mary, and Louise Ellison. "Evidence Law and Feminism." Feminist Perspectives on Evidence (2000): 1-12.
[iii] Cahn, Naomi R. "Looseness of Legal Language: The Reasonable Woman Standard in Theory and in Practice." Cornell L. Rev. 77 (1991): 1398.
[iv] Bartlett, Katharine T. "Feminist legal methods." Harvard Law Review (1990): 829-888.
[v] Cahn, Naomi R. "Defining Feminist Litigation." Harv. Women's LJ 14 (1991): 1.
[vi] Hunter, Rosemary, Clare McGlynn, and Erika Rackley, eds. Feminist judgments: From theory to practice. Bloomsbury Publishing, 2010.
[vii] Balkin, Jack M. "What Brown v. Board of Education should have said." New York: New (2001); Balkin, Jack M. "What Roe v. Wade Should Have Said." The Nation’s Top Legal Experts Rewrite America’s Most Controversial decision (2005).
[viii] See Fuller, Lon L. "The case of the speluncean explorers." Harvard Law Review62.4 (1949): 616-645.
[ix] AIR 1979 SC 185
[x] AIR 1999, 2. SCC 228
[xi] AIR 1952 Bom 84
[xii] (1997) 6 SCC 241
[xiii] WP (Civil) No. 118/2016