How would the opinions of the Indian Supreme Court change if the Justices used feminist methods and perspectives while deciding cases? This is the central question that I sought to explore in this short piece on the occasion of International Women’s Day.
It also persuades me to project a hypothesis: a feminist approach in judicial decision-making brings about fair resolution of disputes and advances the cause of justice.
It is recognized that ‘feminism’ as a movement and a perspective -historically grounded in politics - is one that motivates social, legal, and other battles for women’s equality. It is a movement and mode of inquiry that has grown to endorse justice for all people, particularly those historically oppressed or marginalized by or through law. [See, Naomi R. Cahn, Looseness of Legal Language: The Reasonable Woman Standard in Theory and in Practice, 77 Cornell L. Rev. 1398 (1991). Robert M. Cover, Nomos and Narrative, 97 Harv. L. Rev. 4 (1983)].
Feminism is not the province of women only, and we acknowledge and celebrate the multiple, fluid identities contained in the category ‘woman’. Within this broad view, it is acknowledged that feminists can disagree, and still be feminist, and that there are no unitary feminist methods or reasoning processes.
While feminist legal theory and literature have developed and even thrived within academic institutions, and feminist activists and lawyers are responsible for major changes in the law, feminist reasoning has had a less clear impact on judicial decision-making. More frequently, courts rely on the doctrine of stare decisis and on the language of seeming neutrality. Both approaches serve to mask the underlying and structural biases in the law, making it difficult to see how feminism offers a vital widening of the field for judicial decision-making.
A judge’s perspective may influence his or her decision about the doctrinal basis for an opinion. A court may have to ascertain whether to decide a lawsuit as a substantive due process case involving privacy rights or as an equal protection case involving gender equality. Decision makers are influenced by assumptions and expectations about gender, ethnicity, class, sexuality and other characteristics. Despite the judicial system’s professed impartiality in terms of rules and decision-making processes, experience-shaped ideas and perceptions may have a major, if difficult-to-see, influence on judges’ interpretation and implementation of the law.
In my farewell speech at the Supreme Court, I admitted that by nature, a part of me is feminine. Going by the qualities which this gender possesses, I am of the firm opinion that every male, in order to be a complete human being, should possess some elements of femininity. After all, the symbol of justice is a goddess, a female form. No doubt, she is shown blindfolded. However, her heart, from where emanate the qualities imparting justice, is not shut. In the first place, it teaches us that,
"Everyone may not be nice, but there is something nice in everything. But never keep a fixed image for everyone, because people act differently in different situations."
Feminist consciousness helps in inhering the qualities of doing justice - which is pregnated with mercy - justice which has the attribute of compassion. It is the attribute of femininity which instils the desired sensitivity that is required in varied types of cases and in various circumstances. It is well-known that women have a sixth sense. I had said earlier that while discharging judicial functions, with the passage of time, judges acquire sense of justice, which is their sixth sense. However, there is a pre-condition to that, namely, that you need to have a feminine approach to justice. In terms of language, some feminist judges might use rhetorical strategies that are somewhat different from the common narrative. At the same time, we should also remember that law not only operates on pre-existing gender-centric realities, but also contributes to the construction of those realities.
There was an interesting project undertaken by the Cambridge University few years ago, known as The United States Feminist Judgments Project. They had brought together a group of scholars and lawyers to rewrite, using feminist reasoning, the most significant US Supreme Court cases on gender from the 1800s to the present day. This Project took up 21 cases of the Supreme Court and applied feminist reasoning on the issues involved in those cases. On that basis decisions, were rewritten, and the conclusion was that previously accepted judicial outcomes were not necessary or inevitable. It was also demonstrated that feminist reasoning increases the judicial capacity for justice, not only for women, but for many other oppressed groups.
In India too, there was a similar initiative undertaken by feminist scholars, practitioners, and activists from law and other fields, named as The Indian Feminist Judgements Project (IFJP). These initiatives act as a vital teaching tool for bridging the divide between feminist theory and practice by fundamentally reimagining the function of the judge in order to adjudicate differently while adhering to the same constitutional and legal constraints.
Feminist study has demonstrated how legal principles and their application by courts continue to be ingrained in patriarchal spaces, with the reasonable man serving as the baseline against which reasonable expectations are measured. Historically, this ‘jurispathic governance’ has been reluctant to consider the experience of female litigants or feminist concepts of autonomy, equality, and selfhood. Various judgments rendered by the higher courts would have brought out a different outcome, if the judiciary had adopted feminist reasoning. A study such as IFJP, which analyses few of such judgments bears testimony to that.
Speaking about some of the methods that are recognized in feminist judicial reasoning, in any case, an effective resolution of the problem will depend upon the intricacies of each specific factual context. This, at the same time, acts as a bridge to the voices and stories of the experiences that have been lived with broader historical, cultural, and social contexts. Feminist practical reasoning in a sense seeks to amalgamate the sources of pure legal reasoning by drawing on the point of view of an outsider. Another closely related concept to this is the use of a narrative to illustrate the effect of law on individuals. While feminist practical reasoning may address both the specific story of the case and the social sphere in which the law is applied, narrative feminist methodology concentrates on telling the tale of the facts of the case.
There is a formal equality in the history of feminist legal philosophy. Formal equality seeks to fix explicit sex discrimination by asserting that similarly situated people should be treated equally and that invidious use of a sex classification is conjecturally illegally. Formal equality is substantively succeeded by anti-subordination feminism, which, as the name suggests, is a postulation based on the acknowledgement of social oppression of certain groups. This theory, just like any other conjecture of philosophical discourse, postulates that any policy which broadens the existing inequalities of a social structure is unlawful.
Anti-stereotyping is opposing law’s conformance with gender roles, and its normative verdict about what a woman or a man should be. Justice Ruth Bader Ginsburg is credited for developing this jurisprudence which is a source of light for legal system across the world by her opinion in the historic verdict of United States v. Virginia. This case was initiated by the Justice Department after an unidentified woman complained that she was denied the opportunity to attend Virginia Military Institute. Justice Ginsburg’s approach was more akin to severe scrutiny than the intermediate scrutiny threshold employed in earlier cases involving equal protection on the basis of sex. But nevertheless, her observations set the theme for the coming generation of judges to instil femininity in their judgments, and to reject the fixed impressions widely held in society regarding men and women.
The richness and diversity of the rewritten opinions in feminist judgment projects discussed above reveals the length, breadth and depth of feminism. It also demonstrates the feasibility and utility of using feminist legal theories and feminist methods to decide complex looking legal problems. It is definitely a situated perspective inherent in judging, but at the same time it also reflects that by widening the range of one's outlook, a remarkable change can be observed. Law has the potential to be a dynamic and energetic agent of change, particularly when its interpretation and creation involve judges with varying experiences, backgrounds, and worldviews. To conclude this discussion, I borrow these lines of eminent philosopher Plato,
“This music of change in law gives soul to the universe, wings to the mind, flight to the imagination, and charm and gaiety to life and to everything."
Justice AK Sikri is an eminent jurist and a retired judge of the Supreme Court of India.