An Indian project is rewriting key verdicts through the lens of gender justice

File photo of Hadiya

Shayara Bano

Last September while acquitting co-director of Peepli Live Mohammed Farooqui of rape charges, the Delhi high court ruled that a “feeble no” can mean yes, especially in cases where the alleged victim was well-educated and intimate with the accused in the past. The order drew sharp criticism from many feminists who pointed out the judge had muddied the waters on consent by setting a precedent that a woman’s no doesn’t always mean no.It’s judgments like these that have prompted a group of Indian lawyers, scholars and academicians to look at justice through a feminist lens. Inspired by a global movement to rewrite verdicts in Canada, UK, US, Scotland and Australia, this 50-strong group recently launched the Feminist Judgment Project India.The idea was seeded a few years ago when Delhi-based lawyer Jhuma Sen stumbled upon a book on the feminist judgment project in England and Wales while working in senior advocate Indira Jaising ’s chambers. ‘’I thought it was a great idea,’’ says Sen, who then set about putting a similar project in place here.“When we say that a judgment is being rewritten, we mean it is actually being rewritten. We imagine ourselves as the judge and the judgment as a missing opinion, or a dissenting opinion or just a rewritten opinion showing the possibilities of an alternative interpretation,’’ Sen, who teaches at the Jindal Global Law School, says. The project is expected to publish a book which will be used to train and enlighten young law students. Others who are part of the project include National Law University professor Aparna Chandra and professor of gender studies at Ambedkar University Rachna Chaudhary.But should judges be feminist? According to Erika Rackley, a law professor who was part of the British project, judges often have to decide cases in which the existing rules provide no clear answer. In such cases, they often have to turn to their own values and notions of what is right or wrong. So if judges sometimes have no choice but to fall back on their values and perspectives, why shouldn’t feminist values and perspectives be included?Sen says her reading of the Feminist Judgments Project is less radical. “An interpretation of substantive equality in our constitution will be deemed as ‘feminist’ by some; but for me it is the constitutional goal of substantive equality that is being advanced in such interpretation,’’ Sen says.Sometimes even “empowering” judgments may not withstand a closer feminist scrutiny. For instance, in Rajbala vs state of Haryana, the Supreme Court in 2015 made educational qualifications (matriculation and above) mandatory for contesting panchayat elections. In its argument, the court said it is only education that gives a human being the power to discriminate between right and wrong, good and bad.While the decision may appear gender-neutral, it impacted women adversely as only 20 lakh or less than 50% of the 46 lakh women in Haryana above 20 years of age, were matriculate and qualified to contest. “This was an exclusionary judgment which impacted women, especially Dalit women and minorities, the most,’’ Sen says.In another case, author Geeta Hariharan filed a writ petition in the Supreme Court, challenging an act which declared the father as the natural guardian of the child. While the SC ruled that the mother is also the natural guardian even when the father is living, Sen says the court chose to accommodate the rights of the mother within the act rather than strike down the section as unconstitutional. “The rewritten judgment will explore the judgment from the perspective of equal rights of both parents and what is in the best interest of the child,” she adds.There are also judgments that have read down or limited the scope of pro-women laws. “There have been a series of judgments that have undermined IPC 498A and dowry prohibition act so there are no immediate arrests, and an impression has been created that women are misusing the law,’’ she says.While underlining the fact that it is a mock exercise, criminal lawyer Rebecca John says that it is a good move. “Our courts have a language that is largely patriarchal, condescending and does not capture the aspiration of the modern woman. This needs to change. Perhaps the project will reach the same conclusion as the court but will appreciate the point of view of the woman complainant better,’’ she says.