A Case for Feminist Reasoning in Judicial Edict

Introduction

What would the Indian Supreme Court judgments look like if key decisions on gender issues were written with a feminist perspective? Here, the author’s endeavour is to analyse this often forgotten yet most seminal question of feminist jurisprudence and highlight the importance of imbuing feminist consciousness in judicial edicts. Feminist approach permeates a form of societal awareness which widens the lens through which the adjudicator views the law. Applying feminist legal methods in judicial lawmaking while adhering to the established legal doctrines leads to a legal order where justice as fairness is truly achieved.

Historically, feminist movement is known as a mode of inquiry that has endeavoured to seek justice for people who are oppressed or marginalised.¹ D.Y. Chandrachud, J.’s judgment in the famous Sabarimala Temple entry case² is the classic example of how the use of feminist approach brings positive change in both, the law and society. But generally, one very significant gap in the analysis of the Indian courts is the lack of feminist reasoning, suggesting that the whole culture of our judging is intrinsically male, making the notion of women Judge contradiction in terms.

Former President of the Supreme Court of the United Kingdom, Justice Brenda Hale aptly highlights this interesting paradox in her famous essay entitled “How Diverse are Judges?”. She writes that she herself was skeptical about the argument that women Judges were bound to make a difference, for two reasons. First, because women are as different from one another as men are — in their background, experience, attitudes, and values. What may make a difference is feminism, not femaleness. Not all women are feminists, but some men are. Second, we all are Judges and lawyers first and have all sworn the same judicial oath and, in most cases, a wise old woman will make the same decision as a wise old man.³

This epistemological observation underlines the difference between appointing more female Judges and adopting a feminist reasoning in law. It takes us back to one of the most seminal questions of judicial lawmaking — how the opinions of the constitutional courts in India would change if the Justices employed feminist methods and outlook in the judgments. Feminist perspective is historically recognised as something which is deeply grounded in politics, and it is one which motivates social, legal, and other battles for the equal representation of half the population. Adding this to the judgments will give more reason for it.

Feminism is not only the province of women, rather we should as a society acknowledge and celebrate the fluid identities contained in the category “women”. It is widely acknowledged yet fiercely debated that feminists can disagree and still be a feminist and that there are no unitary methods or reasoning processes for being a feminist. It cannot be denied that feminist reasoning and advocacy are responsible for important advances in the jurisprudence relating to discrimination in employment, sexual misconduct, marital rape, reproductive liberty, interpersonal relationships, and equitable distribution, to name a few.⁴

Imbuing feminist consciousness

Justice A.K. Sikri while narrating his experience of imbuing feminist conscience in judgments highlight that feminism has had a less discernable impact on judging, and it is relatively rare to see explicit feminist reasoning in judicial opinions.⁵ Indeed, one thing that has not been prioritised is the investigation of what passes for gender neutral lawmaking and objective legal thinking, which is frequently tied to old beliefs and power hierarchies. All legal actors — Judges, attorneys, and litigants — make decisions from a perspective shaped by their gender, ethnicity, class, religion, disability, language, and sexual orientation. For Judges, this often unrecognised situated perspective can be crucial to the reasoning and the outcome of the cases.

This situated perspective of the decision-maker(s) drives the development of Indian jurisprudence as much as — if not more than — what the doctrine of stare decisis does. A Judge’s worldview may inform the choices that the Judge makes about the doctrinal basis for an opinion she or he is making in a particular case. For example, in Jeeja Ghosh v. Union of India⁶, the petitioner, an eminent disability rights activist was suffering from cerebral palsy. She was deplaned after being seated in the flight. The reason given for deboarding was her infirmity and gender as the airliner lacked adequate facilities to assist her.

Now, the Judges deciding this case had to choose whether to base their reasoning on the touchstone of substantive due process, making it the violation of human dignity, or just deciding it as an equal protection case about gender equality. The court took the first route giving a holistic meaning to disability rights and held that the subject of the rights of persons with disabilities should be approached from human rights perspective than anything else. This approach in the reasoning of the court imbued feminist consciousness in the decision, thereby achieving justice as fairness. Now let us understand what these feminist methods are which have the potential to expand the horizon of judicial lawmaking.

Employing feminist legal methods

As Justice Sonia Sotomayor’s “wise Latina” assertion implies, feminist methodology is a process — a way of researching, writing, evaluating, and theorising used by feminists. Its specific objective is to understand and incorporate the realities of women’s lives, to ask specific questions, to highlight issues and concerns, and to embrace insight and knowledge gained by observing the world through a feminist lens.

In Safford Unified School District v. Redding⁷, Ruth Bader Ginsburg, J.’s partial dissent shows how adopting a feminist perspective might affect the applicability of precedent. In this case, the assistant principal who conducted a strip search of a thirteen-year-old girl suspected of possessing illegal substances was not granted official immunity in Ginsburg, J.’s minority ruling. During the oral hearings, Ginsburg, J. said she was worried that her colleagues had not “quite understood” that a strip search could be a trauma of life for a 13-year-old girl.⁸

According to Ginsburg, J. the facts of the case, namely, the type of offence, the tenuous basis for suspicion, and the girl’s “age and sex” — made it impossible for her to tie together with the majority decision, which held in favour of conducting a strip search with the ostensibly guided protocol. The minority opinion in this case remains a classic precedent of employing feminist methods where judicial reasoning relied upon women’s experiences to reach to the conclusion.

Widening the lens

Taking inspiration from Ginsburg, J.’s dissent, courts in India should also adopt these feminist method(s) while writing their judgments. This will not only distinguish the panache, tenor, and structure of the opinions from the prototypical judgments, but it will also broaden the jurisprudence on various subjects. For instance, the practical reasoning of feminism can bring together the voices of outsiders or those who are excluded while identifying the sources of legal reasoning and values. The lived experiences of women have the tendency to broaden the historical, cultural, and social context described in the judicial opinions.

Another method that can be employed to aid the feminist practical reasoning is the use of a narrative to elucidate the effects of law on individual litigants. While feminist practical reasoning may address both the individual story of the case and the broader context in which law is applied, narrative feminist method focuses on presenting the facts of the specific case as a story.⁹ The narrative of the case is crucial to its outcome because the manner in which the decision-maker interprets the narrative while separating what is relevant from what is irrelevant — and the inferences drawn based on these facts is what ultimately determine the outcome.¹⁰

Due to the importance of narrative to the law, feminist and other critical legal scholars have embraced narration as a distinct strategy for subverting and disrupting the dominant legal discourse.¹¹ Incorporating and asserting the importance of facts that are significant to those outside the mainstream account in law, the feminist narrative method endeavours to expose and oppose the bias and power dynamics inherent in the law’s ostensible neutrality.¹² Instead of focusing on abstract rules and ideals, the narrative method humanises the law by emphasising the actual individuals involved in the cases and the harm done to them.

While adhering to the established legal doctrine and employing recognisably archetypal ways of legal reasoning, feminist approaches imbue a form of awareness which expands and deepens the frame through which we view the law. This in turn further aids the evolution of new thought processes in the mind of the decision-makers overcoming the natural tendency to see things the same way. An example of the same is the US Feminist Judgment Project where a group of scholars and lawyers collaborated to rewrite the twenty-five most significant US Supreme Court cases on gender from the 18th century to present date using feminist methods and reasoning.¹³

A similar exercise was undertaken by Professor Jhuma Sen in the form of Feminist Judgment Project India where she rewrote Sarla Mudgal v. Union of India¹⁴ for a special issue of Jindal Global Law Review.¹⁵ These projects have shown that systemic inequalities are not intrinsic to law, but rather may be rooted in the subjective and often unconscious beliefs and assumptions of the decision-makers. This takes us to the most critical issue this essay intends to highlight i.e. these inequalities may derive from processes and influences that tend to reinforce traditional or familiar approaches, decisions, or values.

Conclusion

Law has always been an innovative and vibrant source of change in society, especially when it is interpreted and formed by Judges with diverse backgrounds, experiences, and worldviews. There is no doubt that feminist theories and methods promote justice as fairness. Feminist consciousness improves judicial fairness and objectivity by examining the law itself as well as the institutional, social, and historical settings of any issue to identify structural biases that may lead to an unfair outcome. The ability of feminist Judges to view the world and the law through a new lens — one that represents the perspective of an outsider, a foreigner, or an expert with a distinct life experience — allows feminist judgments to have a significant impact.

Feminist judgments are the product of flexible, equity-promoting, multifaceted, contextual, and multidisciplinary methodologies that also support anti-subordination. This makes this experiment of judging unique in the sense that it embraces all people as fully human and deserving of true equality. Perhaps it is time for the Indian courts to adhere to what Kahlil Gibran had said, “for thought is a bird of space, that in a cage of words may indeed unfold its wings but cannot fly”.¹⁶