BY: LIVE LAW NEWS NETWORK FEBRUARY 15, 2018
Have you ever thought of rewriting some of the problematic judgments to come out of the Indian Supreme Court? Can academics write an alternative judgment in the cases of Tukaram v State of Maharashtra (Mathura rape case, 1978) or or Suresh Kumar Kaushal v Naz Foundation(2013), which earned much opprobrium in the history of Indian Supreme Court? Well, these questions may be answered in the affirmative, when a new academic project, being carried on these lines, sees the light of the day. Jhuma Sen who,teaches law at Jindal Global Law School, and writes on gender and courts and is the Convener of the Feminist Judgments Project India,answers some of the questions posed by LiveLaw.
LIVELAW: Please tell us how did this idea to start a project on feminist judgment originate and what were the inspirations
JHUMA SEN: I first learnt about the Feminist Judgments Project when I stumbled upon a book in 2012 while preparing for some court work in the chambers of senior advocate Indira Jaising. This book (titled Feminist Judgments: From Theory to Practice) was the England and Wales project book, edited by the conveners of the Project—Rosemary Hunter, Clare McGlynn and Erika Rackley. I remember being enamored by the book and the project so much that for the next few years I chased everyone around me who I suspected would be interested in collaborating to set up a similar project in India.
The idea of the project is brilliant in its simplicity. Lawyers, legal scholars, jurists produce academic critique of existing judgments. Rather than doing that, the Feminist Judgments Projects demonstrate in a disciplined way how judgments could have been written or written better within the constraints that bind judges. It was an exciting project to think about and given that there was no dearth of judgment to rewrite or as is known in the FJP terminology, right, it was I think only a matter of time for the project to be established here.
In 2015, there was also an aborted attempt by me to set up a smaller practice project of sorts with students at my university. In 2015, I did a feminist rewriting of Sarla Mudgal v Union of India for a special issue of Jindal Global Law Review and soon thereafter I wrote to Rosemary Hunter, who was the convener of the UK Project (which rewrote decisions by courts in England and Wales) and was also associated with most of the other FJPs mentioning that I wanted to set up an Indian FJP.
Later next year I met her for a chat in a conference both of us were attending. I had some ideas about what to do with the Indian project and we chatted about it. She said funding for the project was important and stressed on how important the workshops were. In May, last year, I attended workshop at the International Institute for the Sociology of Law on the invitation of Bridget Crawford, one of the conveners of the US project and who was also the organizer of the workshop. The workshop brought together the conveners of all the Feminist Judgments Projects including the ones which were slowly emerging like the Scottish and the Indian project. The workshop was very useful for me to understand what has worked and what hasn’t in the other projects.
That very month, I had written to some colleagues at JGLS informally for a chat about the project. Some hadn’t heard about the project, some had a vague idea about it and some had already heard about the project and thought it was promising. Everyone wanted to know more – so we had an informal workshop a few months later where some colleagues closely looked at some judgments and we discussed the project in more detail, had some discussion about the likely shape it was to take.
I had also reached out to friends in other universities/law schools with the aim that a network of scholars/practitioners will be able to take ownership of the project. We finally released a call for proposal last September seeking proposals to rewrite judgments and write commentary and one could say that officially we started moving as a project then.
LIVELAW: Can one be a judge as well as a feminist? Can you tell us a little bit about ‘feminist judging’?
JHUMA SEN: One can be a judge as well as a feminist. Being a feminist judge does not mean referring to feminist theories and texts but bringing in a feminist consciousness in judicial decision making. The methodology of feminist judging is likely to demonstrate the ways in which judges make choices about interpreting and applying the law. A feminist approach will then scrutinize and evaluate 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 will be questioned by a feminist judge. A feminist judge will be careful about facially neutral laws and rethink ‘reasonable man’ standards. It would be possible to achieve these feminist goals within the constraints of existing legal rules and practice. A feminist method of decision making would, in the worlds of Rosemary Hunter entail the judge in asking the ‘woman question’ and notice gender implications of apparently gender-neutral rules as well as the implications for other traditionally excluded groups, contextualize and particularize, reasoning from context and making individualized rather than categorical or abstract decisions, promote substantive equality etc. to name a few.
LIVELAW:How old are the similar projects in other jurisdictions? Are they all similar in their scope?
JHUMA SEN: The idea for the first Feminist Judgment Project (the England and Wales one) was borrowed from the Women’s Court of Canada (WCC) in 2008 where a group of Canadian scholars, lawyers and activists came together to write ‘shadow’ judgments in major Canadian Supreme Court decisions on section 15 (the equality clause) on the Canadian Charter of Rights and Freedoms to show how substantive equality could be articulated in the judicial voice.
The idea migrated to UK and from there to Australia, Ireland and Northern Ireland, USA, New Zealand to name only a few. There is also an International Law Feminist Judgments Project as are there rewritten feminist tax law opinions in USA and the slowly emerging feminist retakes on employment discrimination and tort law, showing the length and breadth of such academic activist projects. There are new feminist judgments projects hatching too—I am aware that there is a Latin American project and an Eastern European project underway. Each jurisdiction has adapted the project to suit their own specific needs.
The English project was broader in scope than the Canadian one where they set out to rewrite ‘missing’ (feminist) judgments. The Northern/Irish Project emphasized on the strong relationship between political struggles, cultural contestation and judicial reasoning. The U.S. Project broke rhetorical conventions and experimented with judicial tone and language.
However, the idea of shadow judgment writing is not new. In USA,Brown v Board of Education and Roe v Wade have been rewritten by scholars. In Australia, inspired by the Feminist Judgments project, the Wild Judgment Project has emerged which rewrites judicial decisions from an earth centred point of view (Thomas Berry’s Earth Jurisprudence).
LIVELAW:Some would say the project is merely academic, with no influence on judgments being rewritten, or commented upon. How do you think this exercise would have a practical value? Do you expect the Judges to read them and reconsider their own decisions, critically commented upon in your work?
JHUMA SEN: Baroness Hale, the current President of the Supreme Court of the United Kingdom, had written in the forward to the English project book that reading the judgments ‘ought to be a chastening experience for any judge who believes himself or herself to be both true to their judicial oath and a neutral observer of the world’.
I personally think that although the nature of the project is decidedly academic (or as many have pointed out academic activism), the reach of the project is wider. For one, the feminist judgment writing methodology in the project when used inside the classroom have the potential to impact students who are planning to become judges; I also see a lot of potential for this kind of project in judicial training.
Judges do read critical commentaries, opinion pieces on their judgments or other judgments. This project provides shadow judgments which serve as a critical commentary as well as providing a blueprint of the real-world judgment writing exercise. Judges have actively participated or have been associated with many of the sister projects in other jurisdictions which have enriched the projects.
In other jurisdictions, the project has made an important contribution to policy debates regarding the importance of judicial diversity and has also done awareness building for judges, legal practitioners and NGOs about a feminist approach to judicial decision making. In some countries, rewritten judgments from other jurisdictions have been used by lawyers to articulate their written arguments.
LIVELAW: Take the latest judgment in Rajesh Sharma v State of Uttar Pradesh, on Section 498A of the Indian Penal Code. No doubt, a feminist judgment in the same case would make an interesting read. Or take Tukaram v State of Maharashtra. Could the project make the Court rethink and overrule them in a subsequent judgment?
JHUMA SEN: Judgements/judge made laws occupy the central part of our legal universe. We actively use judicial reasoning in the courts as practitioners or in the classroom as scholars. We also constantly hail or condemn strands of judicial reasoning. So it is not a case that judges are not aware of the existing critiques that dominate the pages of print and digital news. One could say that an added benefit of the project is providing a ready template for future ‘righting’ such/similar judgments.
In what manner the template will be used—in a future case, or the same case in appeal or in a judicial training is a different matter altogether. One can be hopeful that judges will be as excited about the project in India, as they have been in other jurisdictions. It is too early to comment on that. I can say that I have been in touch with some retired judges of high courts and all of them have been very encouraging about the project. So I would say the future looks promising.
LIVELAW: Can you give us some idea about the kind of judgments you are rewriting for the India project?
JHUMA SEN: We had a round of selection of proposals that we invited through an open call last year and we selected sixteen cases to be rewritten along with a commentary to each. However, not all areas of “law”; were equally represented in the proposals that we received, so we independently reached out to some potential contributors (legal practitioners and scholars) and most of them have agreed to join the project. Our final pool of approximately thirty judgments to be rewritten are as diverse as Rukhmabai, Suresh Koshal v Naz Foundation, Aveek Sarkar v State of West Bengal, Independent Thought v Union of India, Samar Ghosh v Jaya Ghosh, Uday v State of Karnataka, Suchita Srivastava v Chandigarh Administration, Rajbala v State of Haryana to name only a few.
LIVELAW:So who are the faces behind the project?
JHUMA SEN:Friends and colleagues from NLUD (Aparna Chandra), AUD (Rachna Chaudhary) and JNU (Pratiksha Baxi) and JGLS (Oishik Sircar) have joined the project in the last few months. We also have two very active student participants from JGLS, Rohini Thyagarajan and Tejasvini Puri assisting in the coordination and setting up our website. I am performing the role of a coordinator/convener.
LIVELAW:Is there a template for the project? Will you have a publication containing the rewritten judgments?
JHUMA SEN: We are following the conventional FJP method of collaborative writing. We have scheduled two workshops- the first one in May and the second one in October. Participants will attend the first workshop with a preliminary draft of how they want to rewrite a particular judgment. They will work with their draft in smaller groups and receive feedback/comments from others including other participants and academic/practitioner discussants (we are calling them “readers”) invited from the judges, lawyers, activists community to provide critical comment and ‘reality checks’.
The second workshop is when participants will come back with the draft rewritten judgment and commentary to get another round of feedback/comments. Both workshops are expected to facilitate detailed analysis of the draft judgments in terms of not only reasoning but also style and methodology. We are still in the process of finalising the workshop template. We expect to publish a collection of rewritten judgments and commentaries after standard editorial round as a book late 2019.
LIVELAW: What are the future challenges?
JHUMA SEN: Raising funds to subsidize/ take care of travel of our participants and resource persons and ensure the success of the two workshops is definitely the most difficult challenge now as well as a top priority.