One of the sister projects in the feminist rewriting of judgments around the world, the Indian Feminist Judgments Project uses a feminist lens to critically examine and write alternative opinions to existing judgments. Dr Aparna Chandra, Jhuma Sen and Dr Rachna Chaudhary introduce the latest symposium through four rewritten judgments and commentaries by historians, lawyers, political scientists and sociologists.
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THE Indian Feminist Judgments Project (IFJP) calls itself “a missing feminist judge” that seeks to critique and reshape the law by deploying a feminist ethos.
It pairs commentaries trying to understand judgments in their larger social, political and legal context— and the feminist alternatives that were available when these judgments were written— with contextual rewrites of judgments.
The IFJP employs a lens derived from critical feminist theories that see law and its adjudication as political, contingent, non-objective and non-neutral, maintaining the status quo of gendered power relations.
Also read: Why re-write judgments with a feminist lens
The IFJP believes, “Law shapes and is shaped by its social context.” On this premise, it explains that such social context informs the feminist praxis on the overlapping and intersectional nature of marginalisation. The IFJP particularly explores the enmeshment between law and social power in India.
The Indian Feminist Judgments Project (IFJP) assumes the role of “a missing feminist judge” to critique and seek to reshape the law by deploying a feminist ethos.
In its latest iteration, the IFJP has assembled four judgments and their commentaries in diverse areas in the context of Indian law namely— defining tax units for charging income, understanding consent in sexual offences, the scope of habeas corpus, and the test for adjudicating constitutional equality claims.
Selection of cases
According to Dr Chandra, the four cases were selected from a pool of judgments that were almost ready for publication and could showcase the wide possibilities of feminist rewriting in different areas of law.
As per Dr Chaudhary, ‘diversity’ was the most important principle behind the selection. The attempt was to accommodate a range of diverse areas of jurisprudence as exemplars of feminist intervention(s). On the practical aspect of the selection, she stated that pieces that had already undergone a round of review were chosen to facilitate a smooth peer review process.
Intersectionality
The IFJP wanted to foreground intersectionality, which is absent from mainstream Indian feminism, said Dr Chandra.
Through the rewritten judgments as fictional dissents with feminist imaginations, the IFJP hopes to guide future judges.
Explaining intersectionality through the context of a “classic” case of gender inequality— of Vishakha and others versus State of Rajasthan and others (1997)— Dr Chandra opined that the court perused the case through the single axis of the issue of gender.
She elaborated that the experience of the victim and the response of the state was deeply casteist— given the trouble she went through in trying to file a first information report (FIR) or the lack of serious consideration shown by lower courts to the case because of the caste location of the victim and the perpetrators.
Dr Chandra further explained that when the case was heard by the Supreme Court on the issue of sexual harassment of women, the question of caste was brushed under the carpet.
Moreover, she reflected that the ‘Vishakha guidelines’ are applicable only to formal places of work, leaving the victim herself out of its purview since she does not work in the formal economy. “Hence, if the class angle had been centred in the case, the judgement could also have taken into account the issue of dealing with precarious, domestic and contractual workers,” she remarked.
The IFJP believes, “Law shapes, and is shaped by its social context.”
According to Dr Chaudhary, since representation of diverse areas of law remains a key objective, the IFJP included cases that direct toward intersectionality. She said that intersectionality addresses methodological concerns since feminist interventions in a domain like taxation are still not at a visible stage, at least in the Indian context. “This brings in a radical edge to the IFJP as we do not just aspire to push the limits of law but we are reflexive about the ways in which we do so,” she added.
She explained that intersectionality is a key value held by the IFJP— gender is considered to be a structuring force, it is not the sole factor that creates marginal subjects. “Hence, the need to bring in other axes of identity in our analyses has been included in our imagination of the project’s engagements,” she shared.
Scope of the project
One of the pedagogical goals of the project is to explore the possibility of feminist praxis within the bounds of legal rules and norms of judicial practice existing during the time of the original decision. The IFJP acknowledges certain judgments arise from a certain locational and temporal context, and can only be properly critiqued within that context.
While operating under such limits, the IFJP deals with specific questions including, “To what extent should our judgments mirror these often intangible legal cultural norms which may exercise significant constraints on judges’ reasoning and judicial outcomes?”
Being one of the first feminist projects in the global south, IFJP delves into the “anti-colonial jurisprudence” to inform the feminist imagination in rewriting judgments.
The IFJP engages with the law by subverting it while also retaining space for “negotiating feminist outcomes.” Functioning within the existing rules, the IFJP adopts an “incrementalist” approach rather than a radical approach seeking to “disrupt” legal norms.
Also read: Feminist lawyering: the other side of the independence movement
It undertakes an interdisciplinary approach to judgment-writing, focusing on existing biases, stereotypes and social hierarchies in the functioning of legal institutions. It reflects on traditionally ‘gendered’ areas of law including sexual violence and family law, as well as neutral laws, namely tax law, contract and civil liberties.
Being one of the first feminist projects in the global South, it delves into “anti-colonial jurisprudence” to inform feminist imagination in rewriting judgments. It deploys anti-colonial mobilisations in understanding how State power is deployed, which in turn, can inform how judges understand their role in adjudicating rights.
Through the rewritten judgments as fictional dissents with feminist imaginations, the IFJP hopes to guide future judges.
Considering the restraints in accessing judgments and case files from the trial courts, the IFJP peruses appellate court cases and relies upon facts presented in the original appellate judgments.
The four judgments
Commissioner of Income Tax versus Indira Balakrishnan
In the case of Commissioner of Income Tax versus Indira Balakrishnan (1960), the Supreme Court held that three widows of a common husband, who became co-heirs with a limited estate in the property owned by their husband, cannot hold the status of ‘associations of persons,’ for the purpose of imposing tax liability under Section 3 of the Income Tax Act, 1995.
The original judgment deals with the “seemingly neutral concept of tax law.” The rewritten judgment and commentary of the IFJP covers the concepts of volition, agency and labour, which determine the “tax unit” within the context of feminist jurisprudence, thus exposing the non-neutrality of tax laws.
The IFJP explores various questions related to tax laws, particularly whether the laws should view widows as active agents exercising control, volition and management over their limited property or should it view them as passive recipients of this property, negating any labour that they may perform with respect to the property?
Also read: Needed: Gender Balance in the Legal Profession
The rewritten judgment narrows the difference between the treatment of male co-heirs (taxable by virtue of their status as a ‘Hindu undivided family’) and female co-heirs (taxable only upon specified kinds of action, as an ‘association of persons’).
State of West Bengal versus Anwar Ali Sarkar
In the case of State of West Bengal versus Anwar Ali Sarkar and others (1952), the Supreme Court struck down Section 5(1) of The West Bengal Special Courts Act, 1950 as ultra vires the Constitution, quashing the convictions of 50 persons. The court held that the Act was unconstitutional on the ground that the Act gave the state government “unguided” powers to allocate cases to the special courts.
The Act laid down a procedure for trial before special courts which was different in several respects from that laid down by The Code of Criminal Procedure, 1973 for trial of offences.
The rewritten judgment deals with the test for adjudicating constitutional equality claims. It highlights the anti-colonial approach in Justice Vivian Bose’s concurring opinion that held the entire Act to be void.
It stresses that an aversive approach to constitutional interpretation was “a missed opportunity” since it was never adopted by a majority of the judges in this case or in future cases, where similar laws constituting special tribunals were upheld.
The IFJP engages with the law by subverting it while also retaining space for “negotiating feminist outcomes.”
Invoking the feminist spirit, the rewritten judgment overrules the doctrine of presumption of constitutionality, offering a more robust doctrine of equality grounded in the anti-colonial character of the Constitution.
The commentary on it explores the possibilities of building an anti-colonial jurisprudence of equality for and of the Indian Constitution. It highlights that the Supreme Court’s analysis of the right to equality has failed to place adequate limits on the capacity of the State to deter it from discriminating against people.
Asokan K.M. versus Superintendent of Police
In the case of Asokan K.M. versus Superintendent of Police (2017), the Kerala High Court directed the annulment of a marriage after a writ of habeas corpus was filed by a Hindu father whose daughter, Hadiya, had converted to Islam and married a Muslim man.
In exercising its parens patriae jurisdiction, the high court opined that Hadiya, aged 24 years, was weak, vulnerable and capable of being exploited, thus opining that it was not safe to let Hadiya “decide what she wants in her life”. The high court also pointed to the functioning of radical organisations pursuing activities of converting young girls of the Hindu religion to Islam on the pretext of love (what is pejoratively called love-jihad by the Hindu right in India).
On appeal, the Supreme Court overturned the decision of the high court and denounced the patriarchy meted out in the high court’s judgment and opined that the court had encroached upon Hadiya’s private space.
The IFJP provides a rewritten judgment of the Kerala High Court through a feminist lens that contextualises the case in view of increasing Islamophobia, in the form of allegations of love-jihad, along with the patriarchal and paternalistic approach to women’s exercise of agency. The rewritten judgment centres Hadiya’s rights to exercise volition and control over her own life.
It discusses the scope of habeas corpus and highlights Hadiya’s struggle for autonomy in deciding her religion and choice of a spouse. It brings to light how the “overlapping identities”, as a Muslim woman, inform how State and social powers are experienced and deployed.
Also read: To be really a feminist is to do what the Constitution requires you to do: Justice D.Y. Chandrachud
Further, the commentary on the case raises concerns about the directions of the Supreme Court that allowed the National Investigation Agency (NIA) to continue its investigation against Hadiya’s husband. “They [the Supreme Court] not only insidiously undermined Hadiya’s decisions, but also revealed the shallowness of their feminist stance,” the commentary remarks.
Uday versus State of Karnataka
In the case of Uday versus State of Karnataka (2003), the Supreme Court was moved by the accused convicted under the offence of rape under Section 376 of the Indian Penal Code (IPC) by the Karnataka High Court, wherein the victim alleged that the accused had sexual intercourse with her on a false pretence that he would subsequently marry her.
By allowing the appeal and acquitting the accused, the Supreme Court held that the consent given by the victim to sexual intercourse cannot be said to be given under ‘misconception of fact.’ It observed that a false promise is not a fact within the meaning of the law.
Although the original judgment notes that the victim and the accused belonged to different castes, the rewritten judgment and the commentary by the IFJP explain how the original judgment fails to contextualise the victim’s experience in “a caste-ridden patriarchal society which shapes the interaction between the victim and accused, as well as their encounter with the law.”
Thus, the IFJP explore how oppressed caste identity along with gender identity is central to the experience of sexual abuse of the prosecutrix and the court’s decision. It examines the question of consent in sexual offence cases in the context of social marginalisation of women from oppressed castes, allowing an intersectional feminist approach.
The commentary on the case highlights that the original judgment fails to consider the caste hierarchy. “The impunity of the caste system means that if the promise is not followed through, the woman may not just feel betrayed, but also ‘dishonoured‘, socially ostracised, and left with the option of approaching the court,” the commentary states.
Through the rewritten judgments as fictional dissents with feminist imaginations, the IFJP hopes to guide future judges.
